Introduction

Almost 40 years after the Civil Rights Act was passed and 25 years after the precedent-setting Bakke Supreme Court decision in 1978 concerning affirmative action in higher education, the Court would once again review cases that tested the viability of the policy. It is not an understatement to say that the Gratz v Bollinger and Grutter v Bollinger Supreme Court cases came about in a different social context than the Bakke case. With Bakke, the Civil Rights Movement had just celebrated a significant victory in the fight for equality, and politicians and the public were conceding change, socially and politically. However, in the early 2000s, neoliberal politics were winning out, and a social and political backlash to civil rights initiatives, including affirmative action, was well under way and backed by prominent civic leaders (including the newly elected President George W. Bush). Moreover, the tragedy of 9/11 fostered an environment that was not friendly to racial and ethnic differences.

Furthermore, it is also clear that several vital factors worked against the continuation of affirmative action. First, state judges and Supreme Court justices who maintained anti-affirmative action views appointed by Presidents Reagan and H.W. Bush were numerous and spread across the American judicial system (Cokorinos, 2003). Indeed, the Justices in the Supreme Court itself held a distinctive conservative majority. It was H.W. Bush who replaced the civil rights pioneer Thurgood Marshall with Clarence Thomas, who was anti-affirmative action. Second, the president at the time, George W. Bush, supported the removal of the policy in higher education institutions, and often inaccurately characterized the policy implemented by the University of Michigan as a quota system. Finally, just a few years before the Grutter and Gratz cases, a prominent litigation (Hopwood v Texas) in the state courts of Texas ignored the Bakke precedent and ruled against the use of affirmative action in admissions policies. The Hopwood judges ruled that diversity was not a constitutional rationale, and thus, race could not be considered in higher education admissions decisions. This case, in essence, held that affirmative action violated the Equal Protection Clause of the 14th Amendment. The culminating force of these factors led many political pundits and interested denizens to feel that affirmative action was in its final throws of application, and that the eradication of the policy was imminent.