May the government use racial classifications when it does so to benefit, not discriminate against, racial minorities that have historically been the victims of discrimination?  The Supreme Court first considered that question in 1978, in the case of Bakke v. Regents, University of California.  Bakke, a white applicant to the UC-Davis Medical School, claimed that he was denied admission even though his test scores and grades were markedly better than minority applicants who were admitted.  The Court found that Bakke had been denied equal protection of the laws by UC-Davis's use of a "two-track" admission system, one track for whites and one for non-whites.  Even though Bakke won, many people came to view Bakke as a victory for proponents of affirmative action.  Justice Powell, providing the critical fifth vote for Bakke, said in his concurring opinion that increasing racial diversity in classrooms was a compelling state interest, and that a more narrowly tailored program--such as one that gave "pluses" to minority applicants rather than putting them into a seperate admission track--would not violate the Constitution.  Recently, the Fifth Circuit has predicted, in a case involving a challenge to the affirmative action program at the University of Texas (Hopwood v. Texas), that the Court would not follow Bakke today.  The Fifth Circuit found UT's use of race in its admission process to violate the Constitution.

Richmond v J. R. Croson considered affirmative action in the context of government "set-asides": programs that set aside a specified percentage of government contract dollars for minority business enterprises.  Rejecting the argument that racial set-asides might be justified as a remedy for past societal discrimination, the Court held that such programs are only justified as a remedy for past discrimination by the government entity adopting the set-asides. Croson, and a subsequent case involving a federal set-aside program (Adarand Constructors v Pena (1995)) make clear that all racial classifications will be subject to the strict scrutiny test requiring demonstration of a compelling state interest and use of classifications narrowly tailored to further that interest.

Two recent decisions reflect the Court's new skepticism about affirmative action.  In 2003, the Court in Gratz v Bollinger struck down the University of Michigan's heavy weighting of race as a plus factor in undergraduate admission decisions (while at the same time upholding, 5 to 4 with Justice O'Connor providing the key vote, a more closely-tailored law school admission program). 

Most recently, in two 2007 cases (Meredith v Jefferson County and Parents Involved v Seattle Schools), the Supreme Court struck down programs in Louisville and Seattle that used the race of students as a factor in assigning students to schools so as to maintain a targeted level of racial diversity in public schools.  Chief Justice Roberts (joined by Scalia, Thomas, and Alito) would prohibit all attempts to "racially balance" public schools outside of the higher education context, concluding that no compelling interest exists for such efforts.  Justice Kennedy, providing the fifth vote to strike down the plans, saw the problem as one of  a lack of narrow tailoring. Kennedy suggested that attempts to achieve racial balance in public schools would be constitutional if they focused, for example, on placement of new schools in racially integrated neighborhoods--rather than relying on a "crude" racial classification of students.