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Photo of a black student advocating for affirmative action policies.
In twin cases involving affirmative action policies at the University of Michigan, the Court upheld the use of race as an admissions factor to the Law School, but struck an undergraduate admissions policy that awarded "points" to minority applicants.

Reproduction courtesy of Sandra Sorensen and United Church of Christ
Grutter v. Bollinger and Gratz v. Bollinger (2003)

In the cases Grutter v. Bollinger and Gratz v. Bollinger (2003), the Supreme Court ruled that the use of affirmative action in school admission is constitutional if it treats race as one factor among many, its purpose is to achieve a "diverse" class, and it does not substitute for individualized review of applicant, but is unconstitutional if it automatically increases an applicant's chances over others simply because of his or her race. The Grutter case involved a lawsuit against the admission process at the University of Michigan's Law School. The mission of the law school's intensely competitive admission process was to achieve "a mix of students with varying backgrounds and experiences who will respect and learn from one another." While test scores and undergraduate performance were the most important criteria in selecting applicants for admission, they were not determinitive. The school also examined a host of subjective factors in making its admissions decisions, including the race and ethnicity of the candidates. "Underrepresented" racial and ethnic minority applicants (i.e., African Americans, Latinos, and Native Americans) were looked upon favorably because they helped achieve the school's mission of student diversity. Evidence suggested that without the school's affirmative action policy, an underrepresented minority's average chance of admission would decrease from 35 percent to 10 percent.

Barbara Grutter, a white Michigan resident whose application was rejected, sued the school in a lower federal court alleging that its admissions policy was unconstitutional. Grutter alleged that the school made race a "predominate" factor in admissions decisions and that the school intentionally discriminated against whites, and that this violated the Fourteenth Amendment, which forbids states from denying "to any person within its jurisdiction the equal protection of the law." In its defense, the school maintained that it did not employ racial quotas or percentages in its admissions process but simply sought a "critical mass" of underrepresented minorities in each entering class. The lower court found for Grutter, ruling that the law school's admissions policy was unconstitutional. After a federal appeals court reversed the decision, Grutter appealed to the Supreme Court, which reviewed the case in 2003.

Applying the logic of Regents of University of California v. Bakke (1978), the Supreme Court, in a 5-4 decision written by Justice Sandra Day O'Connor, ruled that the University of Michigan's affirmative action program was constitutional. The Court argued that while the law school's race-conscious admissions scheme was presumptively unconstitutional under the Fourteenth Amendment's Equal Protection Clause because it intentionally discriminated on the basis of race, the school's interest in promoting "student diversity" was sufficiently "compelling," and its case-by-case admissions process was "narrowly tailored" enough, to withstand strict scrutiny. "Student diversity" was important enough to pass constitutional muster because it both counters racial stereotypes and ensures the presence of racial minorities in the nation's elite. The Court also argued that the law school's case-by-case, subjective admissions process was "narrowly tailored" enough to be constitutional because it did not employ a quota system and provided for individualized review of applicants. Instead, the school construed membership in a minority race as merely a "plus" factor among many weighed in the admissions decision.

Gratz v. Bollinger involved a challenge to the University of Michigan's undergraduate affirmative action program. The university ranked each applicant on a 150-point scale, with 100 points generally guaranteeing admission. Membership in a historically discriminated-against racial group, or "attendance at a predominately minority or disadvantaged high school," resulted in an automatic bonus of 20 points on the scale. Jennifer Gratz and Patrick Hammacher, both white residents of Michigan, were denied admission to the university. They subsequently sued the university in a federal court, alleging that its admissions process was unconstitutional. The federal court agreed, and the case was appealed up to the Supreme Court, which reviewed the case in 2003.

The Supreme Court, in a 6-3 decision written by Chief Justice William Rehnquist, ruled that the University of Michigan's undergraduate admissions program was unconstitutional because it violated the Equal Protection Clause. The Court noted that the university automatically conferred points based on an applicant's race, thereby placing some minority candidates ahead of nonminorities in admissions rankings. The Court argued that this system made "race a decisive factor for virtually every minimally qualified underrepresented minority applicant." Thus, because the means employed by the affirmative action program were not "narrowly tailored enough" to withstand strict scrutiny, the university's race-conscious affirmative action program was declared unconstitutional under the Equal Protection Clause.

Together, Gratz and Grutter affirmed and refined the Supreme Court's position on affirmative action a quarter century after its initial decision in Regents of University of California v. Bakke (1978). The Court made clear that affirmative action programs are only constitutional if they consider race as one factor in an individualized evaluation, and only to achieve the goal of "class diversity." With two new justices joining the Supreme Court in 2006, however, the approach may soon become less permissive.

Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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