Law & Courts

In the Court’s Words

July 09, 2003 8 min read
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Affirmative Action Rulings
Excerpts regarding: Grutter v. Bollinger | Gratz v. Bollinger

Here are excerpts from majority and dissenting opinions in the U.S. Supreme Court’s June 23 decision in Grutter v. Bollinger, regarding the consideration of race in admissions at the University of Michigan law school:

Majority Opinion by Justice O’Connor, joined by Justices Stevens, Souter, Ginsburg, and Breyer

This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School is unlawful. ...

‘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. ...’

Since this court’s splintered decision in [Regents of the University of California v.] Bakke, Justice [Lewis F.] Powell’s opinion announcing the judgment of the court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the nation have modeled their own admissions programs on Justice Powell’s views on permissible race-conscious policies. ...

[T]oday we endorse Justice Powell’s view that student-body diversity is a compelling state interest that can justify the use of race in university admissions. ... Today, we hold that the law school has a compelling interest in attaining a diverse student body. ...

View the full text of the Supreme Court’s decision in Grutter v. Bollinger. (Requires Adobe’s Acrobat Reader.)

As part of its goal of assembling a class that is both exceptionally academically qualified and broadly diverse, the law school seeks to enroll a “critical mass” of minority students. ... [T]he law school’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

These benefits are substantial. ... [N]umerous studies show that student-body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals. ...

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. This court has long recognized that “education ... is the very foundation of good citizenship.” Brown v. Board of Education (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. ... And, nowhere is the importance of such openness more acute than in the context of higher education. 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. ...

When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. ...

The United States advocates “percentage plans,” recently adopted by public undergraduate institutions in Texas, Florida, and California to guarantee admission to all students above a certain class-rank threshold in every high school in the state. The United States does not, however, explain how such plans could work for graduate and professional schools. ...

It has been 25 years since Justice Powell first approved the use of race to further an interest in student-body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. ...

Dissenting Opinions

Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas:

... Stripped of its “critical mass” veil, the law school’s program is revealed as a naked effort to achieve racial balancing. ...

I do not believe that the Constitution gives the law school such free rein in the use of race. The law school has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the law school has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the court itself calls “patently unconstitutional.” ...

Justice Thomas, joined in part by Justice Scalia:

... The court will not even deign to make the law school try other methods, ... preferring instead to grant a 25-year license to violate the Constitution. And the same court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of platitudes rather than principle, to force the law school to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination. ...

The majority of blacks are admitted to the law school because of discrimination, and because of this policy all are tarred as undeserving. ... When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed “otherwise unqualified,” or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. ...

Here are excerpts from majority, concurring, and dissenting opinions in the U.S. Supreme Court’s June 23 decision in Gratz v. Bollinger, regarding the consideration of race in the undergraduate admissions program at the University of Michigan:

Majority Opinion by Chief Justice Rehnquist, joined by Justices O’Connor, Scalia, Kennedy, and Thomas

‘...[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.’

...We find that the university’s 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. ...

Respondents contend that “the volume of applications and the presentation of applicant information make it impractical for [the undergraduate college] to use the ... admissions system” upheld by the court today in Grutter. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. ... Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict-scrutiny analysis. ...

Concurring opinion by Justice O’Connor:

Unlike the law school admissions policy the court upholds today in Grutter v. Bollinger, the procedures employed by the University of Michigan’s office of undergraduate admissions do not provide for a meaningful individualized review of applicants. ...

View the full text of the Supreme Court’s decision in Gratz v. Bollinger. (Requires Adobe’s Acrobat Reader.)

[T]he selection index, by setting up automatic, predetermined point allocations for the soft variables, ensures that the diversity contributions of applicants cannot be individually assessed. This policy stands in sharp contrast to the law school’s admissions plan, which enables admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class. ...

Dissenting Opinions

Justice Souter, joined by Justice Ginsburg:

... The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its “holistic review.” ...

Justice Ginsburg, joined by Justice Souter:

... The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities 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. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority- group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. ... If honesty is the best policy, surely Michigan’s accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.

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