Gratz v. Bollinger, Grutter v. Bollinger
An Ode to Justice Lewis F. Powell, Jr.: The Supreme Court Approves The Consideration of Race as a Factor in Admissions by Public Institutions of Higher Education
In a 5-4 decision involving the University of Michigan School of Law, the United States Supreme Court upheld the "flexible" consideration of race as one factor among many for admissions to public institutions of higher education. Grutter v. Bollinger, No. 02-241. The decision was announced by Justice Sandra Day O'Connor; joining her in the majority were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter, and John Paul Stevens. Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas dissented. In a related case, the Court in an anti-climatic 6-3 decision rejected a formalistic point-system plan used by the University of Michigan to admit undergraduates. Gratz v. Bollinger, No. 02-516. The decision in the undergraduate case was announced by the Chief Justice; he was joined in the judgment by Justices O'Connor, Thomas, Kennedy, Scalia, and Breyer. Justices Stevens, Souter, and Ginsburg dissented.
Although some have portrayed the Court's action as a "split decision," in fact, as far as 5-4 decisions go, it is a definitive and decisive victory for race-conscious affirmative action. For the first time, a majority of the Court has held unequivocally that "student body diversity is a compelling state interest that can justify the use of race in university admissions." This explicitly adopts the diversity rationale of Justice Lewis Powell's opinion in Regents of the Univ of California v. Bakke, 438 U. S. 265 (1978), which the Court in Grutter described as the touchstone for constitutional analysis of race-conscious admissions policies.
In deciding that a diverse student body was a compelling state interest, the Court was persuaded that the benefits of such diversity "are substantial." Relying upon an impressive and diverse line-up of amici supporting the Law School's admissions policies, the Court identified promotion of cross-racial understanding and the breakdown of racial stereotypes among the benefits of diversity. The Court deferred to the Law School's judgment of the importance of diversity to its educational mission. This was consistent with the Court's prior recognition that education is pivotal to "sustaining our political and cultural heritage," and is "the very foundation of good citizenship. Brown v. Board of Education, 347 U. S. 483, 493 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. . . ."
The Court explicitly endorsed the Law School's goal of using race and ethnicity to achieve a "critical mass" of otherwise underrepresented minority students, who will not feel isolated on campus or reticent in discourse to express their individual views, freed of the sense that their presence was intended to be representative. What distinguishes this "critical mass" from an unconstitutional quota is the flexibility with which it is pursued. As opposed to the rigid race-conscious formula struck down in Gratz, the Law School's pursuit of diversity involved an individualized review of "each and every applicant," based upon all of the information contained in the file. In contrast, the undergraduate program relied upon a mechanical, predetermined formula that automatically awarded points toward admission based solely upon race and ethnicity, without regard to the individual contribution the applicant would make to the goals of diversity.
Although race or ethnicity might be the deciding factor for the admission of a particular individual, the flexibility that the Court found in the Law School's holistic approach was that in practice it also valued other forms of diversity, and no single form of diversity trumped any other form. In time, the public's embrace of the Court's decision in Grutter likely will be influenced by the extent to which the holistic approach to admissions required by the decision also opens opportunities at highly selective institutions for non-minority applicants.
Finally, the Court emphasized that all race-conscious programs eventually must end. Justice O'Connor expressed the hope that twenty-five years from now race-conscious admissions will not be necessary. That places the burden on universities to review periodically their admissions policies, to adopt race-neutral policies when they will serve the goals of meaningful diversity and selectivity, and to eliminate the consideration of race when race-neutral policies can achieve the compelling interest of a diverse student body. Actually achieving an end to race-conscious admissions in twenty-five years belongs in the same category of aspirations as achieving a color-blind society. But, what undoubtedly will be important in twenty-five years is the record established by selective universities and the states that support them to show that they have made a good faith effort to move in that direction.
Perhaps the most important thing that can be said about the Court's decision in the short-term is that it provides a roadmap for navigating the hazards of race-conscious admissions. First, universities must start with a clear written statement of the goals of its admissions policies, against which the good faith implementation of those policies can be judged. Although the Court does not explicitly identify this as a constitutional requirement, it is clear from Justice O'Connor's opinion that the Law School's written admissions policy was critically important to the Court's willingness to presume that the Law School had acted in good faith in implementing it. Second, the policies must require the university to review conscientiously each applicant for admissions, based upon all the information in his or her file. Although the university may establish a threshold level of minimum qualification, it may not automatically admit or reject any applicant who meets that minimum threshold, without an individualized evaluation of his or her application.
Finally, although the university may set goals for attaining a critical mass of under-represented minority students, it cannot pursue such goals in an inflexible mechanical way that makes race and ethnicity shields that effectively exempt some applicants from competing for admissions. It is the implementation of this aspect of the Law School's policies that caused Justices Kennedy to conclude that, after all was said and done, those policies ultimately operated like a quota. Justice O'Connor does not provide an easy answer to this conundrum. Instead, she looks to how the policies actually operate in other areas of diversity to see if race and ethnicity were being used flexibly. Thus, it was important to Justice O'Connor that the Law School's diversity goal was not merely to ensure some specified percentage of a particular racial or ethnic group, but rather to achieve the broader "educational benefits that diversity is designed to produce." In part, this was reflected in the fact that the Law School also gave serious consideration to other factors beside race and ethnicity that contribute to the benefits of a diverse student body. The Law School's good faith in considering such other factors was reflected in the finding that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Although the Court undoubtedly will defer to a university's judgment about what constitutes a broadly diverse student body, this likely will be an area of heated if not fruitful litigation in the future.
Opponents of race-conscious admissions already have made clear that the Court's decision in Grutter will not end the contentious debate that affirmative action has spawned. But, the decision provides an understandable and realistic approach that universities committed to true diversity can take constitutionally to stay on the high road in that debate.
The author, James E. Coleman, Jr., is Professor of the Practice of Law and Senior Associate Dean for Academic Affairs at Duke Law School. He is a former chair of the American Bar Association's Section of Individual Rights and Responsibilities and chaired an informal task force that oversaw the ABA's participation as a Supreme Court amicus curiae in the Grutter case.
Gratz v. Bollinger
Grutter v. Bollinger
