Affirmative action in higher education is alive and well. In today’s decisions involving the University of Michigan’s race-conscious affirmative action policies, the U.S. Supreme Court has issued a ringing endorsement of the value of diversity in preparing students for the challenges of American life. As the Court stated in Grutter v. Bollinger: “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” The Court has also provided a clear statement about the appropriate use of race in admissions, holding that the individualized consideration of race must be the hallmark of a carefully designed admissions policy that promotes educational diversity.
Affirmative action in higher education is alive and well. In today’s decisions involving the University of Michigan’s race-conscious affirmative action policies, the U.S. Supreme Court has issued a ringing endorsement of the value of diversity in preparing students for the challenges of American life. As the Court stated in Grutter v. Bollinger: “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” The Court has also provided a clear statement about the appropriate use of race in admissions, holding that the individualized consideration of race must be the hallmark of a carefully designed admissions policy that promotes educational diversity.On June 23, 2003, the United States Supreme Court upheld the constitutionality of race-conscious admissions policies designed to promote diversity in higher education. In a 5-to-4 decision in Grutter v. Bollinger, the Supreme Court, drawing on Justice Powell’s opinion in the 1978 case of Regents of the University of California v. Bakke, held that promoting educational diversity in higher education is a compelling governmental interest that can justify the use of race in admissions and that race may be used as a “plus” factor in competitive admissions processes. Applying these standards, the Supreme Court upheld the University of Michigan Law School admissions policy as constitutional. However, in a 6-to-3 decision in Gratz v. Bollinger, the Supreme Court struck down the University’s current undergraduate admissions policies because they do not provide a sufficiently individualized consideration of candidates’ overall qualifications in seeking to promote diversity.The Supreme Court made clear in its Grutter opinion that the promotion of diversity in higher education is indeed compelling: “We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to ‘sustaining our political and cultural heritage’ with a fundamental role in maintaining the fabric of society. . . . 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.” Higher education “must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”In ruling that the promotion of diversity is a compelling interest, the Supreme Court’s decisions resolve a disagreement among the lower federal courts and allow selective colleges and universities throughout the country to employ race in admissions. The decisions reject the absolute race-blind approach to higher education admissions advanced by the Grutter and Gratz plaintiffs and by the U.S. government and others as amici curiae. The Court’s decisions also effectively overrule major portions of the 1996 ruling of the U.S. Court of Appeals for the Fifth Circuit in Hopwood v. Texas, and will allow colleges and universities in the states of Texas, Louisiana, and Missouri to use race-conscious admissions policies designed to advance educational diversity. State universities in California, Washington, and Florida are still prohibited under their state laws from employing race-conscious admissions policies; however, private universities in those states can, as they could before the Grutter and Gratz decisions, employ properly designed race-conscious policies.Taken together, the Court’s opinions in the Grutter and Gratz cases reinforce the importance of employing flexible and individualized considerations of race in admissions. The Court’s opinion in the law school case, Grutter v. Bollinger, confirms that admissions programs which consider race as one of many factors in the context of an individualized consideration of all applicants can pass constitutional muster. The Court’s decision to strike down the undergraduate admissions policy in Gratz as unconstitutional also makes clear that policies which automatically and inflexibly assign benefits on the basis of race, such as the University’s undergraduate point system that allocated a fixed number of points for underrepresented minority group members, are constitutionally suspect. Universities that employ systems which lack sufficient individualized review will need to re-examine their current admissions policies to determine whether their policies require adjustment or revision in light of the Court's decision in Gratz. Moreover, institutions that have adopted more restrictive policies than the Court's decisions allow should also re-examine their policies to ensure that they are not “overcorrecting” out of a misplaced fear of being held legally liable.The University of Michigan decisions involve university admissions policies, but the decisions have significant implications both inside and outside of higher education. The rulings imply that promoting diversity can be used as a justification for race-conscious recruitment and outreach, as well as for financial aid and support programs. The Grutter and Gratz cases had no occasion to address the recent attacks on race-exclusive financial aid and support programs, but the cases provide constitutional moorings for the defense of such programs when designed to advance diversity. Because the burdens on non-minority students in most of these programs are considerably less than in admissions decisions, the constitutional scales established by the Court in today’s cases by no means tip automatically against programs of this type, especially if individual applications for aid are given whole-person evaluation.Although the Supreme Court has yet to address the constitutionality of diversity-based affirmative action programs outside of higher education admissions, language in the Grutter decision reveals the Court’s support for the importance of diversity in other contexts, including K-12 education, as well as employment and business. The Court notes expressly that the benefits of affirmative action “are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” In sum, the University of Michigan cases make clear that promoting diversity in higher education can justify race-conscious admissions policies when they are carefully designed and consider race as part of a flexible and individualized review of all applicants. Erwin Chemerinsky, Sydney M. Irmas Professor of Public Interest LawCenter for Excellence in Teaching University of Southern California Law School Drew Days IIIAlfred M. Rankin Professor of LawYale Law School Walter DellingerDouglas Maggs Professor of Law Duke University Law School Richard FallonProfessor of Law Harvard Law School Lani GuinierBennett Boskey Professor of Law Harvard Law School Pamela KarlanKenneth and Harle Montgomery Professor of Public Law Stanford University Law School Kenneth L. KarstDavid G. Price and Dallas P. Price Professor of Law Emeritus UCLA School of Law Frank MichelmanRobert Walmsley University Professor Harvard Law School Eric SchnapperProfessor of LawUniversity of Washington School of Law Laurence H. TribeRalph S. Tyler, Jr. Professor of Constitutional Law Harvard Law School Mark TushnetCarmack Waterhouse Professor of Constitutional Law Georgetown University Law School Split Ruling on Affirmative Action
June 23, 2003 -- In its first ruling on affirmative action in higher education admissions in 25 years, the nation's highest court ruled Monday that race can be used in university admission decisions. But the narrowly divided court also seemed to put limits on how much of a factor race can play in giving minority students an advantage in the admissions process. The U.S. Supreme Court justices decided on two separate but parallel cases -- they voted 5-4 to uphold the University of Michigan's law school affirmative action policy, which favors minorities. But in a 6-3 vote, the justices struck down the affirmative action policy for undergraduate admissions, which awards 20 points for blacks, Hispanics and Native Americans on an admissions rating scale. The cases tested whether the university is allowed to discriminate because it values diversity in its student body, or whether discrimination is only justified to reverse past racial injustice. The pivotal case, Grutter v. Bollinger, involved the university's law school. Barbara Grutter, who is white, applied for admission there in 1996. She was rejected. She investigated and found out that African Americans and ethnic minorities who had lower overall admissions scores were admitted. Grutter sued, saying she was a victim of illegal discrimination. Grutter's lawyers argued that the admissions program at the university's law school was unconstitutional. They based the argument on a 1978 case, Regents of the University of California v. Bakke, where the court ruled that a school could take race and ethnicity into account -- but couldn't use quotas. Instead, admissions programs must be "narrowly tailored" to harm as few people as possible. Grutter and her supporters won the first round in U.S. District Court, but lost in a close decision in the Sixth Circuit Court of Appeals, which covers the states of Kentucky, Michigan, Ohio and Tennessee. The majority of appellate court justices sided with the university view that a diverse student body has its own benefits, and that a "points" system for admission that takes the race of the applicant into account in an overall score wasn't a quota. Grutter appealed that ruling to the Supreme Court.Justice Sandra Day O'Connor was the eventual deciding vote in Grutter, saying that affirmative action is still needed in America -- but hoped that its days are numbered. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." In the undergraduate case, Gratz v. Bollinger, the 6-3 majority ruled the points system violated equal protection provisions of the Constitution. Chief Justice William Rehnquist said the use of race was not "narrowly tailored" to achieve the university's diversity goals. In Depth
Other Resources • University of Michigan admissions lawsuit Web site • The Center for Individual Rights has provided legal assistance to plaintiffs Barbara Grutter, Jennifer Gratz and Patrick Hamacher in their battle against the university's admissions policy. • Findlaw.com: Grutter v. Bollinger -- Read the friend-of-the-court briefs filed on behalf of both the plaintiffs and defendants, and browse other cases pending before the U.S. Supreme Court. • Transcripts of oral arguments before the U.S. Supreme Court • Affirmative Action.org, Web site for the American Association for Affirmative Action, supports the University of Michigan's admissions policy.
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Why did the Court strike down the University of Michigans system of undergraduate admissions in Gratz v Bollinger?
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