The Volokh Conspiracy

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Which Groups Have Received Racial Preferences in Higher Education Over the Years? (Updated)


(UPDATE: I have been rightly taken to task for not noting the earlier court cases in which either whites or non-black Americans were the group getting preferences. I of course am aware of that phenomenon and its significance. I happen to be working on an article about how courts dealt with (or ignored) the issue of racial classification in affirmative action cases, i.e., whether they addressed whether the classifications themselves were 'narrowly tailored' as opposed to other legal and constitutional objections to affirmative action preferences, and my post was created in that context. But my bad for not specifying. Also, to be clear, my point is not to criticize African Americans or any other group that received the preferences. Rather, just to show how the groups deemed entitled to such preferences has changed over time, because I think few people are aware of it and it's interesting.)

Looking at the underlying facts in major cases in the Supreme Court and circuit court cases, we see that Black Americans have always been eligible, the Mexican American classification expanded into all Hispanics, Asian Americans and subgroups thereof were initially eligible but later were considered "over-represented" and therefore at best ineligible for preferences, if not subject to higher standards than white applicants.

Defunis v. Odegaard: Black Americans, Chicanos, American Indians, and Filipino. Minority origin must be "dominant."

Regents of the University of California v. Bakke: Black Americans, Mexican Americans, American Indians, and Asian Americans.

Podberesky v. Kirwan: Black Americans (scholarship rather than admissions).

Hopwood v. Texas: Black Americans and Mexican Americans.

Grutter v. Bollinger: (1) African Americans, Hispanics and Native Americans (according to the defendant)
(2) African Americans, Mexican Americans, Mainland Puerto Ricans, and Native Americans (according to the district court's findings)

Fisher v. University of Texas: African Americans and Hispanics.

SFFA v. Harvard: African Americans, Hispanics, and Native Americans.