The Supreme Court

Saying Yes to Affirmative Action, Sometimes

When the Supreme Court ruled in 2003 on affirmative action, it actually ruled on two cases. One involved the University of Michigan's law school affirmative action policy, which it upheld by a vote of 5 to 4—Grutter v. Bollinger. The other involved the University of Michigan's undergraduate affirmative action policy, which was struck down by a vote of 6 to 3—Gratz v. Bollinger.

Supreme Sayings

The “nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation … [i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” that can justify using race. Rather, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

—Former Supreme Court Justice Lewis Powell from the Bakke opinion

These were the first major rulings on affirmative action involving university admissions since the landmark Bakke case. That decision involved the admissions policy at the University of California Medical School, which at the time reserved 16 out of its 100 seats for members of certain minority groups. Six separate decisions came out of that case and none of them got a majority. Four justices upheld the program on the grounds that the government can use race to remedy disadvantages caused by past racial prejudices. Four justices believed the admissions program should be struck down completely. Justice Powell was the swing vote. He wrote the opinion for the court that invalidated the University of California program, but left the door open for affirmative action programs provided their purpose is to “attain a diverse student body.”

In both of the 2003 cases, the University argued its purpose was to attain a diverse student body. One program passed Supreme Court muster and the other did not. Let's look at each of these rulings and why the Court voted to allow one and not the other.

Constitutional Law School Admissions Policy—Grutter v. Bollinger

Barbara Grutter is a white woman who applied for admission to the University of Michigan law school in 1996 and was rejected. After investigating her rejection, she found that African Americans and other ethnic minority applicants who had lower overall admissions scores were accepted into the school in the same year.

The University of Michigan clearly states as part of its admissions policy that the highest possible score does not guarantee admission to the law school. Nor does a low score automatically disqualify an applicant. Instead, the admissions officials look beyond grades and test scores to other criteria that are considered important to the school's education objectives. These other variables include recommendations, quality of undergraduate institution, quality of applicant's essay, difficulty of undergraduate course selection, and other factors that help them to assess an “applicant's likely contributions to the intellectual and social life of the institution.”

Supreme Sayings

“So why were universities, public and private, so happy about the decision? Part of the answer is that back in say, 1995, it looked as if an irresistibly powerful anti-affirmative-action wave might be sweeping the country. The decision provides what looks like a guarantee that affirmative action in admissions is now safe for another generation. Having it in writing—writing that has the force of law—is always a relief.”

—Nicholas Lehmann in writing an analysis for The New York Times

The university states its policy aspires to “achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.” The policy did, however, reaffirm the Law School's longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special preference 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.”

Grutter believed this policy was illegal discrimination and filed suit against the university. Her suit was based on Bakke, which said that race and ethnicity could be taken into account, but quotas could not be used as part of an admissions policy. She believed the University of Michigan Law School affirmative action policy did use a quota system and therefore was unconstitutional.

The district court ruled in favor of Grutter, but the 6th Circuit Court of Appeals disagreed, so Grutter appealed to the Supreme Court. Since the Bakke decision was so convoluted and did not give universities a clear set of guidelines, the Supreme Court decided it was time to revisit the issue.

Living Laws

Universities can use affirmative action policies that consider race as long as it is done qualitatively along with other considerations to achieve diversity in the student body. A purely quantitative evaluation, as the point system used in the undergraduate program at the University of Michigan discussed here, is a violation of the equal protection clause and cannot be used.

In 2003, Sandra Day O'Connor was the swing vote in support of the University of Michigan's Law School admissions policy. She said she hoped that one day affirmative action would no longer be needed in America, but believed it was still needed today.

The Court is still closely divided on the issue. It is another one of those decisions for which you need a roadmap. Justice O'Connor wrote the opinion for the Court and was joined by Breyer, Ginsburg, Souter, and Stevens. Scalia and Thomas also joined part of this decision. Ginsburg filed a concurring opinion and was joined by Breyer. Scalia filed an opinion that partially concurred, but also dissented to part of the opinion. Thomas also filed an opinion that concurred in part and dissented in part. Scalia and Thomas joined parts of each others opinions. Chief Justice Rehnquist filed a dissenting opinion, which was joined by Kennedy, Scalia, and Thomas. Kennedy filed another dissenting opinion. So while universities were given a clearer set of guidelines by O'Connor, you can see the Court is still strongly divided on this issue.

In her opinion, O'Connor wrote:

In addition to commenting on the importance of student body diversity, O'Connor also talked about the important role universities have in training future leaders:

In his dissent Justice Thomas strongly disagreed with these conclusions:

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.


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