DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 32                             July 2003

The Use of Race in Higher
Education Admissions:

The University of Michigan Receives
Two Different Results

Norma E. Szakal, Senior Attorney
Brenda H. Edwards, Senior Research Associate

Introduction

Breaking a 25-year silence almost to the day, the Supreme Court of the United States announced, on June 23, 2003, two much-anticipated decisions relating to affirmative action and the use of race in higher education admissions. Both decisions related to the University of Michigan-one to the admissions procedure used in the undergraduate school (Gratz et al. v. Bollinger et al.) and the other to the admissions policy of the law school (Grutter v. Bollinger et al.). The two admissions procedures reviewed by the Court presented very different approaches to the use of race as a factor in higher education admissions; thus, the resulting split decisions, although contrasting and controversial, are not unexpected. Much of language in the many opinions in the two cases was based on the Court's opinion in Regents of the University of California v. Bakke.

Bakke: A Landmark Without a Majority¹

On June 28, 1978, the Court announced its decision on Regents of the University of California v. Bakke, the sole other example of its consideration of race in higher education admissions procedures. Bakke related to the two-pronged admissions program of the medical school of the University of California at Davis-a regular process for Caucasians and a special process for minorities. Applicants who indicated minority status (Blacks, Chicanos, Asians, and American Indians) were reviewed by a different committee than applicants assigned to the regular process. Although many of the criteria used in both the regular and the special admissions programs were the same, some exceptions were allowed for minority applicants. For example, majority candidates were required to have at least a 2.5 undergraduate GPA, the minority candidates were not. Sixteen places in the 100-member freshman class were reserved for minority admissions. Thus, although highly qualified applicants of all races were admitted through the regular process, at least 16 members of minority groups were awarded admission.

The Court held that the special admissions policy was invalid under several rationales; however, the use of race as one factor to be considered was not prohibited. The Bakke opinion, although still considered "landmark" in its reach, was unique in that, although five justices found the special admissions program to be invalid, they arrived at this conclusion through completely different reasoning. Justice Powell's opinion, which "announced the Court's judgment" was based on constitutional analysis that found the special admissions process to be a violation of the Equal Protection Clause of the Fourteenth Amendment. His opinion was not joined by any other judge. Four other justices agreed that the special admissions program was impermissible as a violation of Title VI of the Civil Rights Act of 1964 "by excluding Bakke from the medical school because of his race." The other four justices filed various, mostly dissenting opinions, although all seemed to agree the race could be considered in admissions processes.

In Bakke, Justice Powell called for "strict scrutiny" of race classifications, requiring a compelling governmental interest to sanction such preferences and narrowly tailored remedies that avoid "stigmatization" and do not heavily burden the individuals who do not belong to the preferred race. He found that the university had a "compelling interest" in promoting diversity through consideration of race if "the program's racial classification [was] necessary to promote this interest." He did not, however, find the university's "fixed number of places" to be a necessary means toward "the satisfaction of a compelling interest in diversity." Justice Powell concluded that "[t]he fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment."

In his Bakke opinion, Justice Powell called for an individualized evaluation of each applicant's qualifications and characteristics, which he agreed could include consideration of race as one factor, "without the factor of race being decisive." In the opinion, he referred to the admissions program developed at Harvard, which provided for such an evaluation of each individual. He referred to "a properly devised admissions program involving the competitive consideration of race and ethnic origin." He noted that race could be a "plus" for an individual. As recognized in the Michigan opinions, institutions of higher education across the country have sought to pattern their admissions policies to Justice Powell's opinion; however, courts have been stressed to interpret Bakke and its lack of a single majority rationale.

Gratz v. Bollinger: Michigan's Undergraduate Admissions Process²

The University of Michigan's undergraduate school admissions procedure evolved from 1995 (the year from which Jennifer Gratz was eventually denied admission) to 2002. The revisions were, however, more a matter of form than substance, with all versions providing underrepresented minorities who had the same credentials as nonminority applicants with preferential treatment.

All of the undergraduate admissions program versions used a broad set of criteria for evaluating applicants, such as high school quality, curriculum strength, standardized test scores, unusual circumstances, the place of residence, and any alumni relationships. For 1994 through 1996, this process included an initial review and the calculation of a rating called a "GPA 2," then the factoring of the applicant's rating into a table according to categories or groups-out-of-state minority, in-state minority, out-of-state non-minority, and in-state non-minority. Depending on the group into which the applicant was placed, the result could be different, with minority applicants with ratings identical to non-minority applicants being accorded admission and the non-minority applicants being denied admission. The rating system was revised in 1997 to include added points when the applicant had "unusual circumstances." Unusual circumstances included minorities, socioeconomically disadvantaged, high schools with large populations of underrepresented minorities, and requests for admission to programs in which the applicant was an underrepresented minority. From 1995 to 1998, underrepresented racial or ethnic minorities were also given preferences for early admission on the theory that early admission led to enrollment more frequently and special consideration for "protected seats" when applying late in the rolling admissions process.

The revised procedure that has received the most attention in this case was initiated in 1998 and consisted of a "selection index" with a maximum score of 150 points. Applicants with at least 100 points were admitted. Every application was reviewed for certain credentials, such as grade point average, high school quality, curriculum strength, in-state/out-of-state status, relationships with alumni, scores on standardized tests, essay quality, achievement, and leadership. Various characteristics were awarded varying points. Underrepresented racial or ethnic minorities and other identifiable groups, such as athletes and lower socioeconomic candidates, were automatically awarded 20 points by virtue of being in the particular group-the largest number of points awarded for any characteristic. In 1999, the selection index was continued and a special committee was established ostensibly to add a layer of individual review of applicants who appeared to be able to succeed at the university, had some minimum selection index score, and had specific characteristics, such as high class rank, unique life experiences, socioeconomic disadvantage, or underrepresented minority or geography of residence. Admissions personnel could identify or "flag" an application for the special committee's review. The special committee could then make a recommendation on the application.

Grutter v. Bollinger
The Law School's Admissions Program³

The law school's policy for consideration of race in admissions was written in 1992 by a faculty committee. The goal was to obtain "a mix of students with varying backgrounds and experiences who will respect and learn from each other" while complying with the Supreme Court's 1978 decision in Regents of University of California v. Bakke-the only previous decision relating to the use of race in higher education admissions.

In contrast to the undergraduate procedure, the law school's admissions policy is not based on numbers or ratings and does not provide specific preferences. The law school states that it looks at all credentials, including the traditional ones-undergraduate grade point average, score on the Law School Admissions Test (LSAT), essay detailing how the applicant could contribute to the law school intellectually and socially, recommendations, undergraduate institution quality, essay quality, and undergraduate curriculum difficulty. The law school also looks for diversity factors. The emphasis is on academic achievement, and "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." However, neither high nor low GPAs and LSAT scores are said to dictate automatic decisions.

Diversity is not designated as only racial or ethnic, but may include any number of factors that may contribute to diversity on campus. The law school avers that race is just one consideration among many factors. Although no diversity characteristics are designated as eligible for "substantial weight," the law school acknowledges a commitment to including underrepresented minorities, specifically African-Americans, Hispanics, and Native Americans. The policy is described in terms of ensuring a "critical mass" of such students through admission of meaningful numbers, without any set-asides for numbers of students or ratings. "Critical mass" is an undefined number that prevents stigmatization and provides a kind of comfort zone, so that the individual does not feel like a spokesperson for a race or group and does not have a sense of being alone in the environment.

Granting of Certiorari

While the Grutter case (law school) was already before the Sixth Circuit Court of Appeals, the District Court delivered its opinion on the Gratz case, invalidating the undergraduate admissions policy from 1995 to 1998 and validating the program for 1999 and 2000. Both sides appealed some parts of the District Court decision. The Gratz and Grutter cases were heard by the Sixth Circuit Court of Appeals on the same day. At a later date, the Court's decision in Grutter was announced, upholding the law school's admissions policy, while various matters were still pending on the Gratz case before the Circuit Court. In a somewhat unusual move, the Supreme Court granted certiorari to both of the cases, without a decision from Sixth Circuit Court of Appeals on the Gratz case, "so that [the] Court could address the constitutionality of the consideration of race in university admissions in a wider range of circumstances."⁴

In Grutter, Justice O'Connor, speaking for the Court, stated that certiorari was granted "to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities."⁵

The Gratz Opinion: Michigan's Undergraduate Admissions Policy Impermissible

This class action suit was brought by two Caucasian residents of Michigan, both of whom were denied admission to the university's undergraduate programs. The petitioners complained of violations of the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act, and 42 U.S.C. ?1981.

Section 1 of the Fourteenth Amendment relates to the rights of citizens that may not be abridged by states; the Equal Protection Clause (the last clause in this section) declares that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."

Title VI at 42 U.S.C. ?2000d reaffirms the Equal Protection Clause, providing that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

Section 1981, an older civil rights law, relates to the right and sanctity of contracts, due process, and equal protection, stating "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."

The Court's Opinion

Chief Justice Rehnquist wrote the opinion of the Court which finds the undergraduate procedure in place from 1999 to 2000 to be in violation of the Equal Protection Clause, Title VI and Section 1981.⁶

The consideration of race has been allowed when remedying the effects of past discrimination by the Supreme Court and when national security is implicated. The Court has required that the government show a compelling interest that can only be met through the use of race and that the means employed to satisfy the compelling interest has been narrowly drawn. The petitioners in Gratz maintained that the university's interest in obtaining and maintaining a diverse student body was not strong enough or specific enough to be a compelling interest that could be remedied through a narrow means. In the alternative, the petitioners also maintained that the admissions policy of the undergraduate school was not tailored in a narrow way to achieve the university's interest in diversity. The petitioners argued that Justice Powell's opinion in Bakke would not allow the university's undergraduate admissions program, which requires individual evaluations and prohibits quotas or decisive preferences. Of course, the respondents (the university) argued just the opposite, noting their belief that the undergraduate admissions process was consistent with the Harvard policy on which Justice Powell based so much of his Bakke opinion.

Referring to the Grutter decision, the Chief Justice acknowledged that the Supreme Court had recognized that achieving diversity in its student body was a compelling state interest. Quoting from Adarand Constructors, Inc. v Pena, he declared that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized."⁷ Strict scrutiny is indicated regardless of which races are benefited or burdened. The Court found that the undergraduate policy "which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program."

The Court also found that the practice of awarding the 20 points for race precluded individualized evaluation, terming this rating system "a factual review of an application to determine whether an individual is a member of one of these minority groups." The award of the 20 points rendered race decisive "for virtually every minimally qualified underrepresented minority applicant." The Chief Justice did not find any credence in the fact that the special committee could review applications in an individualized manner after the applications had been "flagged." The record did not appear to evince an individual evaluation as any thing but an exception to the general rule.

Chief Justice Rehnquist dismissed the university's contention that the administrative burden of performing an individual assessment of each application was too great, noting that administrative burdens do not justify constitutionality for an "otherwise problematic system." Because the remedy to achieve "the compelling interest of a diversity is not narrowly tailored . . ., the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment." He also announced that the undergraduate program was in violation of Title VI and Section 1981 and remanded the case to the District Court for consideration of liability.

Concurring and Dissenting Opinions

The difficulties in decisions on the consideration of race in any government setting can be seen by the variety of opinions in this case and Grutter.⁸ Justice O'Connor delivered a concurring opinion in this case, in which Justice Breyer joined except for one sentence-the last one, stating agreement with the Court's decision to reverse the District Court's decision that the 1999 to 2000 undergraduate process was upheld.

Justice Thomas also filed a concurring opinion in which he primarily speaks to the Grutter decision, concerns about impermissible "racial balancing," and his opinion that the two decisions would not allow discrimination "between the groups constituting the critical mass."

Justice Breyer delivered a one-paragraph opinion, concurring in the Court's judgment, but not in the opinion, and concurring with almost all of Justice O'Connor's concurring opinion and a part of Justice Ginsburg's dissenting opinion (although he does not dissent in the judgment).

Justice Stevens, joined by Justice Souter, filed a dissenting opinion relating to the standing of the petitioners vis-à-vis this class-action and prospective injunctive relief. He states that the petitioners did not suffer "threat of imminent future injury" because they had both enrolled in other schools and graduated. Therefore, he opines, the petitioners had no standing to seek injunctive relief to protect third persons from similar injuries.

Justice Souter, joined in part by Justice Ginsburg, dissented, also noting the problems with standing and threat of injury. He also would uphold the undergraduate admissions system, which he does not find to be a quota that "insulate[d] all non-minority candidates from competition for certain seats." He states that the program allows "all applicants [to] compete for all places and values an applicant's offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of study, residence, alumni relationships, leadership, personal character, socioeconomic disadvantage, athletic ability, and quality of a personal essay." Justice Souter also avers that "Justice Powell's plus factors necessarily are assigned some values." He ends by stating that, if the petitioners had proper standing, he would uphold the District Court's opinion that the university's current system is constitutional.

Justice Ginsburg, joined in part by Justice Souter, strongly dissents to the Court's opinion in language on the "not far distant from overtly discriminatory past, and the effects of centuries of law-sanctioned inequality [that remains] painfully evident in our communities and schools." Within this opinion, Justice Ginsburg notes that racial considerations have been found to be allowable when "advanced to 'correct inequalities.'" She states that, because racial discrimination is still active, institutions of higher education will "seek to maintain their minority enrollment-and the networks and opportunities thereby opened to minority graduates-whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue." She ends by expressing the opinion that Michigan's policy is "preferable to achieving similar numbers through winks, nods, and disguises." She too would uphold the District Court's opinion that the university's current system is valid.

The Grutter Decision: The Law School's System is Upheld

The Court's Opinion

Justice O'Connor delivered the Court's opinion in this case. She was joined by Justices Stevens, Souter, Ginsburg, and Breyer. This suit was brought by Barbara Grutter, a Caucasian residing in Michigan who was refused admission to the law school although she had a 3.8 GPA and 161 score on the LSAT. This is also a class action suit. Unlike the Gratz situation, the issue of standing does not seem to be contested.⁹

Petitioner claims that she was rejected because race is used as a "predominant" criteria for admission, thereby providing members of minority groups with greater chance of admission. She also asserts that the law school has "no compelling interest to justify their use of race in the admissions process."

After describing the law school's admissions policy and its consideration of "critical mass," Justice O'Connor listed the "soft variables" that are considered in the admissions process. She speaks to broad array of diversity that the law school recognizes and acknowledges the "Law School's long-standing commitment to 'one particular type of diversity,' that is racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." She designates this policy as "seek[ing] to guide admissions officers in producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession."

Trial testimony provided evidence that admissions personnel were under no direction to admit any percentages or numbers of minorities and were told to consider race as one element. It was also noted that "daily reports" of the racial and ethnic composition of the admissions were distributed and consulted to ensure that a "critical mass" of minority students would be admitted "so as to realize the educational benefits of a diverse student body."

The meaning of "critical mass" was addressed in questions during oral argument and in the Court's opinion. "Critical mass" is said to mean enough people to "encourage underrepresented minority students to participate in the classroom and not feel isolated." Testimony also indicated that consideration of race varied from "no role" to "determinative."

Reports were submitted at the trial level to support the benefits of diversity to the educational process and to the promotion of tolerance among students and society.

The District Court decision struck down the law school's use of race in admissions in order to obtain diversity as not being compelling under Bakke and not being a remedy for past wrongs. The lower court also noted that even if diversity was a compelling interest, the law school's use of race was not narrowly tailored to achieve such interest. The Sixth Circuit Court of Appeals reversed the District Court, holding that Justice Powell's solo decision in Bakke was binding precedent and that the Bakke decision did hold diversity to be a compelling interest. The Sixth Circuit applied Bakke as "the controlling rationale" and found the law school's race-conscious admissions policy to consist of a "plus" and to be almost identical to the Harvard policy so touted by Justice Powell in Bakke.

Justice O'Connor, after recognizing the importance of Bakke as the only other Supreme Court opinion on race as a consideration in higher education admissions, discussed Justice Powell's opinion in great detail. She detailed the concepts that were rejected by Justice Powell: achieving racial balance, remedying societal discrimination, and increasing minority representation in the medical profession. Justice Powell allowed the medical school's interest in achieving a diverse student population, but noted that "individual rights may not be disregarded." Under Justice Powell's Bakke rationale, race must be one factor in a complete range of criteria and not just "ethnic diversity." Many qualifications/characteristics must be considered.

Although Justice O'Connor did not declare Justice Powell's opinion in Bakke to be "binding precedent" on behalf the Court, the Court did "endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions."

Quoting the Equal Protection Clause, the Court emphasized the need to apply strict scrutiny to any and all racial classifications. Therefore, the compelling state interest in achieving a diverse student body can only be satisfied through a narrowly tailored means. The Court also wishes to "dispel the notion that . . . our affirmative-action cases decided since Bakke . . .suggest that remedying past discrimination is the only permissible justification for race-based governmental action." The Court goes on to defer to the law school in its educational judgment that diversity is essential "to its educational mission" and to recognize the importance of academic freedom. The Court stated: "Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that 'good faith' on the part of a university is 'presumed' absent a showing to the contrary."

The Court again stresses the educational benefits of diversity and cites various amici curiae concerning the necessity of having an educated and diverse leadership from the military and American businesses and the educational significance of an open and inclusive system, particularly in higher education.

Having found the law school to have a compelling interest in considering race in admissions, the Court then analyzes whether the means to achieve this interest is narrow enough to satisfy strict scrutiny. The Court emphasizes that a permissible system must not "insulate" any groups from competition, must not be quotas, must not provide separate methods for decision making, and must be flexible in considering "all pertinent elements of diversity in light of the particular qualifications of each applicant." The Court acknowledges, however, that race, as Justice Powell has opined, may be used as a "plus."

The Court decided that the goal of achieving diversity through admitting a "critical mass" of minorities is not a quota system. The Court discounts the "daily reports" and any hint that the law school's consideration of race is anything but part of a flexible continuum of factors as well as a broad array of diversity characteristics. The law school's consideration of race is accomplished within an individualized evaluation of each applicant's qualifications, without any "mechanical, predetermined diversity 'bonuses' based on race or ethnicity."

The Court discusses race-neutral means of achieving diversity, such as lotteries, top percentages of graduating classes, and the argument that such means could have been utilized with meaningful results. However, the Court does not agree and finds that "[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative." The Court also finds that the law school does not have to "choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups."

The Court does not give the law school an open-ended approval, however. The Court reminds the law school of its continuing scrutiny and that any use of race in admissions must be "limited in time." The law school is reminded to review the necessity for the use of race and told that its word that it would like to "terminate its race-conscious admissions program as soon as practicable" is taken at face value. The Court places its own time limitation on these programs, stating "[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

In closing, the Court finds that the law school's use of race in its admissions process does not violate the Equal Protection Clause as it is narrowly tailored to fulfill its compelling interest of diversity and the benefits to education that "flow" from such diversity. Since there is no Equal Protection violation, the Title VI and Section 1981 claims also fail. Thus, the Sixth Circuit Court of Appeals decision in Grutter is affirmed.

Concurring and Dissenting Opinions

Five other opinions, concurring or dissenting in various degrees, were also issued.¹⁰

Justice Ginsburg, joined by Justice Breyer, issued a concurring opinion, which focused on the time limitation and the continued existence of racial discrimination and its invidious effects on people and society. In an apparent effort to soften the time constraints in the Court's opinion Justice Ginsburg ends by stating "from today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action."

Justice Scalia, joined, in part, by Justice Thomas, opined that "the University of Michigan Law School's mystical 'critical mass' justification for its discrimination by race challenges even the most gullible mind." He notes the admissions statistics as showing "racially disproportionate admissions." Justice Scalia agrees with Justice Thomas's opinion that Michigan's real interest is in "maintaining a 'prestige' law school whose normal admissions standards disproportionately exclude blacks and other minorities." He refers to the benefits in terms of racial understanding and good citizenship as "a lesson of life rather than law." Justice Scalia states that the Grutter-Gratz split double-header "seems perversely designed to prolong the controversy and the litigation." Some examples of possible future litigation include educational benefits of diversity in specific circumstances, the good faith stretching of "critical mass" into a de-facto quota system, and whether racially diverse systems will tolerate minority-only student groups or housing.

Justice Scalia ends his dissent by declaring: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."

Justice Thomas, joined, in part, by Justice Scalia, begins by quoting from the very dramatic and poetic speech of Frederick Douglass known as "What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865." The tone of the speech is basically "Don't do us any favors. Leave us alone and let us stand tall to do our best." Justice Thomas finds the law school's race-conscious admissions policy is "an exclusionary admissions system that it knows produces racially disproportionate results." He agrees with the Court in some limited respects (e.g., "that racial discrimination will be illegal in 25 years"). He states, however, that he believes "that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months." He finds the law school's rationale for the use of race in admissions lacking in the seriousness needed to be a compelling state interest and characterizes the majority opinion as a "we know it when we see it" approach to evaluating state interest that is not capable of judicial application. He states that the law school has no compelling interest in existing, that legal education is not a compelling public need, and that maintaining an elite law school is certainly not a compelling necessity. He quotes statistics relating to the number of Michigan graduates who stay (a small percentage) and leave (a high percentage) the state after graduation to substantiate that the law school is not serving "the people of Michigan or any cognizable interest of the State of Michigan."

Justice Thomas is unmoved by the majority's deference to the law school and academic freedom. He feels that racially conscious admissions systems such as the law school's could "impede the narrowing of the LSAT testing gap" by providing a disincentive for minorities to prepare for the test as carefully as white applicants have. He ends by observing: "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."

Justice Rhenquist, joined by Justices Scalia, Kennedy, and Thomas, dissented. The Chief Justice did agree, however, that "in the limited circumstance when drawing racial distinctions is permissible," narrowly tailored remedies must be used to "achieve a compelling state interest." He does not agree that the law school's program is so tailored and states that the "critical mass" goal is "a naked effort to achieve racial balancing." Justice Rehnquist faults the Court's application of strict scrutiny, particularly in the deference paid to the law school's judgment. He notes that the law school purports to desire "critical mass" in all of the under-represented groups; however, the admissions patterns are very different for the various groups, which Justice Rehnquist finds "inconsistent," with more African-Americans being admitted than Hispanics and Native Americans. He also notes that the "percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups" and that this correlation must result from "careful race-based planning by the Law School."

The Chief Justice is also concerned about the lack of a time limitation in the law school's consideration of race in admissions, noting that in other cases the Court has required a definite time limitation because of the "invidious" nature of race discrimination. He finds the law school's assurances of wishing to stop consideration of race as soon as race-neutral means are available to be "the vaguest of assurances" and the requirement for a time limit has been "casually subverted."

Justice Rehnquist ends by declaring that this case is "not merely a question of 'fit' between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution."

Justice Kennedy also filed a dissent which avers that the Court fails to "apply strict scrutiny." He agrees with Justice Powell's opinion in Bakke, but does not agree that the Court has applied it accurately. He notes that the Court has opined that the use of race in admissions is permissible if it meets the second part of the test; that is, strict scrutiny or "rigorous judicial review." Quoting from Richmond v J.A. Croson Co., he notes that "[a]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny."¹¹ Justice Kennedy finds the Court's deference to the law school's method inappropriate and the "concept of critical mass . . . a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas." He does not find the law school's assurances of individualized evaluations to be "preserved at this stage of the application process given the instruction to attain what it calls critical mass." He uses statistical data to support his contention that the law school's "[n]arrow fluctuation band [in admissions] raises an inference that the Law School subverted individual determination, and strict scrutiny requires the Law School to overcome the inference."

Justice Kennedy also points out the use of the "daily reports" to "track" the composition of the law school class so that it could be determined whether a "critical mass" had been obtained. He considers the consulting of these reports at the end of the rolling admissions process to have ended any individual consideration of applicants' merit. Justice Kennedy finds difficulty in assessing "the court's pronouncement that race-conscious admissions programs will be unnecessary 25 years from now." If this is intended to be a "self-destruct mechanism," he feels that "the majority's abandonment of strict scrutiny undermines this objective."

Justice Kennedy ends by stating that "[i]f universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review." Although he agrees that it is appropriate to consider race in the context of higher education admissions, he is of the opinion that "[t]he Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review."

The Future: More Litigation

Many universities and colleges, in Virginia and nationwide, will rethink their admissions policies to conform to the principles articulated in Gratz and Grutter. Some revamped systems for promoting diversity will probably not be race-neutral and may be antithetical to individuals who are not accorded admission. The remodeled programs will probably be more subjective, in imitation of the University of Michigan Law School.

Few, if any, institutions will continue to use or implement in the future any overt rating systems that provide even the hint of rating preferences for underrepresented minorities. A concerted effort to eliminate all affirmative action already seems well underway. Some justices have predicted in their many opinions on these two cases, and, indeed, some of them may happily anticipate, that litigation will increase and will address de-facto situations as well as de-jure circumstances on this very controversial and contentious issue. Because litigation is costly, in money and in public relations, some public higher education institutions may opt to be as safe as possible in designing their admissions policies.

Concerns about racial preferences raise many unpleasant and loathe-to-be discussed attitudes and emotions. Thus, Justice Ginsburg's concerns about covert actions and "winks, nods, and disguises" may ripen into difficult and antagonistic issues that are hard to substantiate relating to the use of race in admissions procedures.

Notes

Footnotes use Lexis pagination, which is subject to change pending release of the final published version.

¹ Regents of the University of California v. Bakke, 438 U.S. 255, 287-320, 408-421 (1978).
² Gratz et al. v. Bollinger et al., 2003 U.S. Lexis 4801, *11-28.
³ Grutter v. Bollinger et al., 2003 U.S. Lexis 4800, *12-26.
⁴ Gratz, at *27-28.
⁵ Grutter, at *25-26.
⁶ Gratz, at *12-57.
⁷ Id., at *45; Adarand Contractors, Inc. v. Pena, 515 U.S. 200, 224 (1995).
⁸ Id., at *57, 65, 66, 67, 83, 96.
⁹ Grutter, at *12-65.
¹⁰ Id., at *65, 70, 84, 98, 103.
¹¹ Id., at *86; Richmond v. J.A. Croson Co., 488 U.S. 469, 493-494 (1989).

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