Grutter v. Bollinger
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This page is part of the Affirmative Action Project
The case originated in 1996 when Barbara Grutter, a white Michigan resident with a 3.8 grade point average and 161 Law School Admissions Test (LSAT) score, was rejected by the University of Michigan Law School. She filed suit in December 1997, alleging that the university had discriminated against her on the basis of race in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. She said she was rejected because the Law School used race as the "predominant" factor, giving applicants belonging to underrepresented minority groups (African Americans, Hispanics, and Native Americans) a significantly greater chance of admission than White and Asian American applicants with similar credentials. She argued that the university had no compelling interest to justify that use of race.
The named defendant in the case was Lee Bollinger, the president of the university, who fought for the university's status quo, with the purpose of achieving racial diversity in the student body.
In March 2001, U.S. District Court Judge Bernard A. Friedman ruled that the admissions policies were unconstitutional because they "clearly consider" race and are "practically indistinguishable from a quota system." In May 2002, the Sixth Circuit Court of Appeals reversed the decision, citing the Regents of the University of California v. Bakke decision and allowing the use of race to further the "compelling interest" of diversity. The case was subsequently appealed to the Supreme Court. The Court agreed to hear the case, the first time the Court had heard a case on affirmative action in education since the landmark Bakke decision of 25 years prior.
On April 1, 2003 the US Supreme Court heard oral arguments for Grutter. The Court allowed the recordings of the arguments to be released to the public the same day, only the second time the Court has allowed same-day release of oral arguments. The first time was Bush v. Gore, 531 U.S. 98 (2000), the case that decided the U.S. Presidential Election in 2000.
Supreme Court's decision
In the court's ruling, Justice O'Connor's majority opinion held that the United States Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." The court held that the law school's interest in obtaining a "critical mass" of minority students was indeed a "tailored use." O'Connor noted that sometime in the future, perhaps twenty-five years hence, racial affirmative action would no longer be necessary in order to promote diversity. It implied that affirmative action should not be allowed permanent status and that eventually a "colorblind" policy should be implemented. The opinion read, "Race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." The phrase "25 years from now" was echoed by Justice Thomas in his dissent and was only that time limit was concurred in by Justice Thomas.
The decision largely upheld the position asserted in Justice Powell's concurrence in Regents of the University of California v. Bakke, which allowed race to be a consideration in admissions policy, but held that quotas were illegal.
Public universities and other public institutions of higher education across the nation are now allowed to use race as a plus factor in determining whether a student should be admitted. While race may not be the only factor, the decision allows admissions bodies to take race into consideration along with other individualized factors in reviewing a student's application. O'Connor's opinion settles the question for the time being as to whether "diversity" in higher education is a compelling governmental interest. As long as the program is "narrowly tailored" to achieve that end, it seems likely that the Court will find it constitutional.
In the majority were Justices O'Connor, Stevens, Souter, Ginsburg, and Breyer. Justices Rehnquist, Scalia, Kennedy, and Thomas dissented. Much of the dissent concerned a disbelief in the validity of the law school's claim that the system was necessary to create a "critical mass" of minority students and provide a diverse educational environment.
The case was heard in conjunction with Gratz v. Bollinger, in which the Court struck down the University of Michigan's more rigid, point-based undergraduate admission policy, which was essentially deemed a quota system. The case generated a record number of amicus curiae briefs from institutional supporters of race preferences. A lawyer who filed an amicus curiae brief on behalf of members and former members of the Pennsylvania legislature, State Rep. Mark B. Cohen of Philadelphia said that O'Connor's majority decision in Grutter v. Bollinger was a "ringing affirmation of the goal of an inclusive society."
Justice Thomas, joined by Justice Scalia, issued a strongly worded dissent arguing that if Michigan could not remain an elite institution and admit students under a race-neutral system, the "Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system." In Justice Thomas' opinion, there is no compelling state interest in Michigan maintaining an elite law school, due to the fact that a number of states do not have law schools, let alone elite ones. Moreover, Justice Thomas noted that in United States v. Virginia, the Court required the Virginia Military Institute to radically reshape its admissions process and the character of that institution.
Another criticism raised by Justice Thomas, compared the Law School to Boalt Hall, where California's Proposition 209 had barred Boalt Hall from "granting preferential treatment in on the basis of race in the operation of public education" in contrast to Michigan but where in comparison the school was still able to achieve a diverse student body. He expresses, "the Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with "reputations for excellence" [...] rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination."
A final criticism leveled at Justice O'Connor's opinion was the length of time the racial admissions policy will be lawful. Justice Thomas concurred that racial preferences would be unlawful in 25 years, however, he noted that in fact the Court should have found raced-based affirmative action programs in higher education unlawful now:
- I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "'eliminate the [perceived] need for any racial or ethnic'" discrimination because the academic credentials gap will still be there. [citation omitted] The Court defines this time limit in terms of narrow tailoring, [internal citation omitted] but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. [internal citation omitted]. With these observations, I join the last sentence of Part III of the opinion of the Court.
- For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.
Chief Justice Rehnquist argued the Law School's admissions policy was an unconstitutional quota. The Chief Justice attacked the Law School's asserted goal of reaching a "critical mass" of minority students, finding the absolute number African-American, Hispanic, and Native American students varied markedly. Citing admissions statistics, the Chief Justice noted the tight correlation between the percentage of applicants and admittees of a given race and argued that the numbers were "far too precise to be dismissed as merely the result of the school paying 'some attention to [the] numbers.'"
Justice Scalia also issued a critique of O'Connor's logic as effectively neutering the 14th Amendment's Equal Protection guarantees.
Law Adopted Post Case
Following the decision, petitions were circulated to change the Michigan Constitution. The measure, called the Michigan Civil Rights Amendment, Proposal 2 (2006), passed.