Grutter v. Bollinger and Gratz v. Bollinger, 539 U.S. __ (2003).
Grutter argued 1 Apr. 2003, decided 23 June 2003, by vote of 5 to 4; O'Connor for the Court, joined by Stevens, Souter, Ginsburg, and Breyer, joined in part by Scalia and Thomas, Ginsburg concurring, joined by Breyer, Scalia concurring in part and dissenting in part, joined by Thomas, Thomas concurring in part and dissenting in part, joined by Scalia, Rehnquist dissenting, joined by Scalia, Kennedy and Thomas, Kennedy dissenting.
Gratz (2003), argued 1 Apr. 2003, decided 23 June 2003, by vote of 6 to 3; Rehnquist for the Court, joined by O'Connor, Scalia, Kennedy and Thomas, O'Connor concurring, joined in part by Breyer, Thomas concurring, Breyer concurring in the judgment, Stevens dissenting, joined by Souter, Souter dissenting, joined in part by Ginsburg, Ginsburg dissenting, joined by Souter and joined in part by Breyer.
In these two cases, the Supreme Court revisited for the first time since
Bakke the question of whether, and in what manner, the
Equal Protection Clause of the
Fourteenth Amendment permits a public university to consider the race of applicants in its admissions decisions. In
Grutter, the Court considered the admissions policy for the University of Michigan Law School; in
Gratz, it considered the admissions policy for the University of Michigan's undergraduate program.
Both policies had as a goal the admission of a racially diverse student body and, to that end, took into consideration an applicant's race. The policies differed, however, in how they factored race into the admissions process. The law school's policy required that each applicant be individually evaluated based on his or her entire file (undergraduate grade point average, law school admissions test [LSAT] scores, a personal statement, letters of recommendation, and an essay describing the way in which the applicant would contribute to the life and diversity of the law school). It instructed admissions officials to ensure that applicants had the ability to “do well enough to graduate with no serious academic problems,” but also to assess “the applicant's likely contribution to the intellectual and social life of the institution.” One express aim of the policy was to “achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.” Special attention was to be given to the inclusion of students from groups that have been historically discriminated against, such as African‐Americans, Hispanics, and Native Americans, who without this commitment might not be represented in the student body in meaningful numbers. For those underrepresented groups, the stated goal was to enroll a “critical mass,” in order to “ensure their ability to make unique contributions to the character of the Law School.”
At the undergraduate level, the university sought to increase the number of underrepresented minorities through an admissions policy that assigned twenty points to every applicant from an underrepresented minority group, one‐fifth of the one hundred points needed to guarantee admission and more than the points assigned to any other attribute.
In
Grutter, applying
strict scrutiny, the Court approved the law school's approach. First, it held that a state's interest in achieving a racially diverse student body is a compelling state interest because of the educational benefits that flow from diversity. It then held that the law school's admissions policy was narrowly tailored to achieve that end because, while giving some weight to the race of an applicant, it was not a quota and it guaranteed individualized consideration. As Justice Sandra Day
O'Connor explained in her opinion for the Court: “The Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”
In
Gratz, however, the Court reached the opposite conclusion. Bound by the holding in
Grutter that diversity is a compelling state interest, the Court held that undergraduate admissions policy was not narrowly tailored to meet that end, because the automatic assignment of twenty points to each applicant from an underrepresented minority group did not provide for any individualized consideration. Rather, the undergraduate approach made the factor of race decisive for virtually every minimally qualified underrepresented minority applicant.
Only Justices O'Connor and Stephen
Breyer agreed with the outcome in both cases. For both, the key difference in the policies was the fact that the undergraduate policy did not provide for a “meaningful individualized review of applicants.” Four members of the Court, Chief Justice William
Rehnquist and Justices Antonin
Scalia, Clarence
Thomas, and Anthony
Kennedy, would have held both policies unconstitutional. Both Rehnquist and Kennedy argued that neither policy was narrowly tailored to achieve the end of racial diversity; the chief justice described the law school's policy as a “sham” to cover a scheme of racially proportionate admissions. Both Scalia and Thomas argued that the equal protection clause prohibits any consideration of race in admissions. In
Grutter, Scalia described the claimed educational benefits of a diverse student body, “cross‐racial understanding,” “better preparation of students for an increasingly diverse workforce and society,” and good “citizenship,” as lessons of life not law. Thomas argued that the real interest at stake was not the incremental “educational benefit” that emanates from the “fabled critical mass of minority students,” but rather the school's interest in maintaining a “prestige” law school whose normal admissions standards disproportionately exclude blacks and other minorities.” Quoting Frederick Douglass, he deplored the negative stereotyping that he sees as an inevitable outcome of race preferences in admissions programs.
Two members of the Court, Justices John Paul
Stevens and David
Souter, would have dismissed
Gratz for lack of a plaintiff with proper standing. Only Justice Ruth Bader
Ginsburg would have held both policies constitutional, although Souter would have as well absent the standing issue. Ginsburg's dissent in
Gratz, joined in part by Breyer, criticizes the majority for continuing to apply the same equal protection standard to all official race classifications, rather than distinguishing between policies of exclusion and policies of inclusion. Given the history of racism and its continued effects in this country, she maintained that race‐consciousness (in the latter sense) may be constitutional if “benign,” and if it does not “trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once‐preferred groups.”
Although the Court's rulings in these cases upheld generally the use of race‐conscious admissions policies in education, its opinion in
Grutter states that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Scalia and Thomas agreed that there had to be a time limit, but not one so casually announced. Ginsburg, joined by Breyer, agreed that race‐conscious admissions programs must have a “logical end point,” but cautioned that the twenty‐five‐year goal could be only a “hope” and not “firmly forecast.”
Alison E. Grossman
