DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Use of Race in Higher
University of Michigan Receives
Two Different Results
Norma E. Szakal, Senior
Brenda H. Edwards, Senior Research Associate
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.
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
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
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:
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.
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
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
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
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).
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.
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.
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
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
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
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."
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.
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.
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
Five other opinions,
concurring or dissenting in various degrees, were also issued.10
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
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
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."
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."
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."
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
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
The Future: More Litigation
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
Lexis pagination, which is subject to change pending release of the final
1 Regents of the
University of California v. Bakke, 438 U.S. 255, 287-320, 408-421
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
6 Gratz, at
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).
Issue Brief is an occasional publication of the Division of Legislative
Services, an agency of the General Assembly of Virginia.
R.J. Austin, Manager,
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
Commonwealth of Virginia.