Grutter v. Bollinger, 539 U.S. 306; 123 S. Ct. 2235; 156 L. Ed. 2d 304 (2003)

Facts—Grutter, a white Michigan resident who had applied to and been rejected by the law school at the University of Michigan, argued that the school had discriminated against her on the basis of race in violation of the Fourteenth Amendment and federal statutes. The District Court struck down the school’s use of race, but the U.S. Sixth Circuit Court of Appeals found that the school’s consideration of race was narrowly tailored toward the permissible goal of increasing diversity, much like the program that Justice Lewis Powell had commended at Harvard, when he had struck down the quota sys- tem at the University of California at Davis in the Bakke decision of 1978.

Questions—(a) Does diversity constitute a compelling state interest for taking race into account in university admissions? (b) Did the admissions policies of the University of Michigan Law School violate the Fourteenth Amendment or federal statutes?

Decisions—(a) Yes; (b) No.

ReasonsJ. O’Connor (5–4). The admissions program at the University of Michigan Law School was designed both to “focus on academic ability” and to provide “a flexible assessment of applicants’ talents, experiences, and potential ‘to contribute to the learning of those around them.’” The school included “soft” variables, including considerations of race in meeting its goals and attempting to get a “critical mass” of minority students so that such minorities would not feel isolated, but the university had not specified this mass “in terms of numbers or percentages.” Referring to the Bakke case, 438 U.S. 265 (1978), O’Connor endorsed Powell’s view in that decision “that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Racial classifications require strict scrutiny, but this scrutiny need not be “strict in theory, but fatal in fact.” O’Connor believed that the university’s judgment that diversity was essential to its educational mission was due judicial deference, and she cited evidence that American businesses consider skills in dealing with people from diverse backgrounds to be important. Governmental programs using racial classifications should be narrowly tailored to their objectives, thus invalidating quota systems and providing for individualized consideration of applicants. Michigan did not focus exclusively on race but used it as one factor among many. O’Connor noted that the university did not intend for the program to be permanent and expected that such programs would be unnecessary in another twenty-five years. In the meantime, the program was not precluded either by the U.S. Constitution or by federal law.

J. Ginsburg’s concurring opinion expressed reservations about setting a twenty-five-year deadline for such programs.

C.J. Rehnquist’s dissent argued that the majority’s standard had been too deferential to constitute strict scrutiny. He found little relationship between the law school program and its goal of achieving a “critical mass,” observing that this mass varied significantly from one racial group to another and correlated too closely with racial percentages in the population to have arisen randomly. He further argued that Michigan had not established a precise enough termination date for its programs.

J. Kennedy’s dissent focused on what he believed was undue deference by the majority to Michigan’s use of race. Like Rehnquist, he believed the percentages of minorities accepted each year implied that the university was giving too much consideration to race.

J. Scalia in dissent noted that “today’s Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.”

J. Thomas’s dissent began with a quotation from Frederick Douglass, indicating that American blacks “can achieve in every avenue of American life without the meddling of university administrators.” He embraced the idea that discrimination should end in twenty-five years but saw no need to wait that long. Thomas did not believe that the university had established a compelling state interest for its policies and especially rejected any goal of remedying past racial discrimination as too “amorphous.” Thomas saw no “pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school.” Thomas did not believe that the First Amendment interest of the university was sufficient to allow it to violate the Fourteenth Amendment, and he compared this decision to the Court’s decision in United States v. Virginia, 518 U.S. 515 (1996), outlawing discrimination based on sex at the Virginia Military Academy. By focusing on race, the Fourteenth Amendment distinguished the preference at issue in this case from the “legacy” and other preferences that universities sometimes used. Thomas found nothing hallowed about the idea of “selective” admissions and expressed some concern about possible racial biases in the Law School Admission Test (LSAT). He further argued that the attempt to decide whether racial preferences helped or hurt a minority group was “benighted.” Beyond hurting those whom it rejected, discrimination “engenders attitudes of superiority or, alternatively, provokes resentment among those who believe that they have been wronged by the government’s use of race,” and cited the decision as “yet another example of judicial selection of a theory of political representation based on skin color.”

Note—This decision affirmed Justice Powell’s argument in Bakke (1978) that diversity could constitute a “compelling state interest,” but suggested, in conjunction with Gratz v. Bollinger, that the Court would oppose strict racial preferences or considerations of race that were based on stereotypes rather than on individualized consideration of applications.

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