Grutter v. Bollinger

Grutter v. Bollinger
Supreme Court of the United States
Argued April 1, 2003 Decided June 23, 2003
Full case name	Barbara Grutter, Petitioner v. Lee Bollinger, et al.
Citations	539 U.S. 306 (more) 123 S.Ct. 2325, 156 L.Ed.2d 304, 71 USLW 4498, 91 Fair Empl.Prac.Cas. (BNA) 1761, 84 Empl. Prac. Dec. P 41,415, 177 Ed. Law Rep. 801, 03 Cal. Daily Op. Serv. 5378, 2003 Daily Journal D.A.R. 6800, 16 Fla. L. Weekly Fed. S 367
Case history
Prior	Held for Plaintiff and enjoined use of current admissions policy, 137 F. Supp. 2d 821 (E.D. Mich. 2001); reversed, 288 F.3d 732 (6th Cir. 2002) (en banc); certiorari granted 537 U.S. 1043 (2002)
Subsequent	Rehearing denied, 539 U.S. 982 (2003)
Holding
University of Michigan Law School admissions program that gave special consideration for being a certain racial minority did not violate the Fourteenth Amendment.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	O'Connor, joined by Stevens, Souter, Ginsburg, Breyer
Concurrence	Ginsburg, joined by Breyer
Concur/dissent	Scalia, joined by Thomas
Concur/dissent	Thomas, joined by Scalia
Dissent	Rehnquist, joined by Scalia, Kennedy, Thomas
Dissent	Kennedy
Laws applied
U.S. Const. amend. XIV

Grutter v. Bollinger, 539 U.S. 306 (2003), was a landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. Justice Sandra Day O'Connor, writing for the majority in a 5-4 decision, ruled that the University of Michigan Law School had a compelling interest in promoting class diversity. The court held that a race-conscious admissions process that may favor "underrepresented minority groups," but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents of the Univ. of Cal. v. Bakke.

Justices Ginsburg and Breyer concurred in judgment, but stated that they did not subscribe to the Court's belief that the affirmative measures in question would be unnecessary in 25 years.

Chief Justice Rehnquist, joined by Justices Kennedy, Scalia, and Thomas, dissented, arguing that the University's "plus" system was, in fact, a thinly veiled and unconstitutional quota system. Chief Justice Rehnquist cited the fact that the percentage of African American applicants closely mirrored the percentage of African American applicants that were accepted.

Justice Kennedy also dissented separately, arguing that the Court failed to apply, in fact, strict scrutiny as required by Justice Powell's opinion in Bakke. Both Justice Scalia and Justice Thomas also dissented separately.

Case

When the Law School denied admission to Barbara Grutter, a female Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that respondents had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. § 1981; that she was rejected because the Law School uses race as a "predominant" factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race. Lee Bollinger, the President of the University of Michigan, was the named defendant of this case.

The University argued that there was a compelling state interest to ensure a "critical mass" of students from minority groups, particularly African Americans and Hispanics, is realized within the student body. They argued that this aims to "ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes."

• The District Court found the Law School's use of race as an admissions factor unlawful.
• The Sixth Circuit reversed, holding that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest, and that the Law School's use of race was narrowly tailored because race was merely a "potential 'plus' factor" and because the Law School's program was virtually identical to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion.
• The Supreme Court affirmed the Sixth Circuit's reversal of the District Court decision, thereby upholding the University's admissions policy.

Lower courts

In March 2001, U.S. District Court Judge Bernard A. Friedman ruled that the admissions policies were unconstitutional because they "clearly consider" race and are "practically indistinguishable from a quota system." In May 2002, the Sixth Circuit Court of Appeals reversed the decision, citing the Bakke decision and allowing the use of race to further the "compelling interest" of diversity. The plaintiffs subsequently requested the Supreme Court review. The Court agreed to hear the case, the first time the Court had heard a case on affirmative action in education since the landmark Bakke decision of 25 years prior.

On April 1, 2003 the US Supreme Court heard oral arguments for Grutter. The Court allowed the recordings of the arguments to be released to the public the same day, only the second time the Court has allowed same-day release of oral arguments. The first time was Bush v. Gore, 531 U.S. 98 (2000), the case that ultimately ended the 2000 presidential election.

Supreme Court's decision

The Court's majority ruling, authored by Justice Sandra Day O'Connor, held that the United States Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Court held that the law school's interest in obtaining a "critical mass" of minority students was indeed a "tailored use". O'Connor noted that sometime in the future, perhaps twenty-five years hence, racial affirmative action would no longer be necessary in order to promote diversity. It implied that affirmative action should not be allowed permanent status and that eventually a "colorblind" policy should be implemented. The opinion read, "race-conscious admissions policies must be limited in time." "The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." The phrase "25 years from now" was echoed by Justice Thomas in his dissent. Justice Thomas, writing that the system was "illegal now", concurred with the majority only on the point that he agreed the system would still be illegal 25 years hence.

The decision largely upheld the position asserted in Justice Powell's concurrence in Regents of the University of California v. Bakke, which allowed race to be a consideration in admissions policy, but held that quotas were illegal.

Public universities and other public institutions of higher education across the nation are now allowed to use race as a plus factor in determining whether a student should be admitted. While race may not be the only factor, the decision allows admissions bodies to take race into consideration along with other individualized factors in reviewing a student's application. O'Connor's opinion answers the question for the time being as to whether "diversity" in higher education is a compelling governmental interest. As long as the program is "narrowly tailored" to achieve that end, it seems likely that the Court will find it constitutional.

In the majority were Justices O'Connor, Stevens, Souter, Ginsburg, and Breyer. Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas dissented. Much of the dissent concerned a disbelief in the validity of the law school's claim that the system was necessary to create a "critical mass" of minority students and provide a diverse educational environment.

The case was heard in conjunction with Gratz v. Bollinger, 539 U.S. 244 (2003), in which the Court struck down the University of Michigan's more rigid, point-based undergraduate admission policy, which was essentially deemed a quota system. The case generated a record number of amicus curiae briefs from institutional supporters of affirmative action. A lawyer who filed an amicus curiae brief on behalf of members and former members of the Pennsylvania legislature, State Rep. Mark B. Cohen of Philadelphia, said that O'Connor's majority decision in Grutter v. Bollinger was a "ringing affirmation of the goal of an inclusive society." The swing justice in both cases was Sandra Day O'Connor.

Dissent

Chief Justice Rehnquist, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, argued the Law School's admissions policy was an attempt to achieve an unconstitutional type of racial balancing. The Chief Justice attacked the Law School's asserted goal of reaching a "critical mass" of minority students, finding the absolute number African-American, Hispanic, and Native American students varied markedly, which is inconsistent with idea of a critical mass, in that one would think the same size critical mass would be needed for all minority groups. He noted that "[f]rom 1995 through 2000, the Law School admitted... between 13 and 19... Native American[s], between 91 and 108... African American[s], and between 47 and 56... Hispanic[s]... [O]ne would have to believe that the objectives of 'critical mass' offered by respondents are achieved with only half the number of Hispanics, and one-sixth the number of Native Americans as compared to African Americans." Citing admissions statistics, the Chief Justice noted the tight correlation between the percentage of applicants and admittees of a given race and argued that the numbers were "far too precise to be dismissed as merely the result of the school paying 'some attention to [the] numbers.'"

Justice Thomas, joined by Justice Scalia, issued a strongly worded opinion, concurring in part and dissenting in part, arguing that if Michigan could not remain a prestigious institution and admit students under a race-neutral system, the "Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system." In Justice Thomas' opinion, there is no compelling state interest in Michigan maintaining an elite law school, due to the fact that a number of states do not have law schools, let alone elite ones. Moreover, Justice Thomas noted that in United States v. Virginia, 518 U.S. 515 (1996), the Court required the Virginia Military Institute to radically reshape its admissions process and the character of that institution.

Another criticism raised by Justice Thomas compared Michigan Law to the University of California, Berkeley School of Law, where California's Proposition 209 had barred Berkeley Law from "granting preferential treatment on the basis of race in the operation of public education." Despite Proposition 209, however, Berkeley Law was still able to achieve a diverse student body. According to Thomas, "the Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with 'reputations for excellence'...rivaling [Michigan Law's] have satisfied their sense of mission without resorting to prohibited racial discrimination."

A final criticism leveled at Justice O'Connor's opinion was the length of time the racial admissions policy will be lawful. Justice Thomas concurred that racial preferences would be unlawful in 25 years, however, he noted that in fact the Court should have found race-based affirmative action programs in higher education unlawful now:

I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "'eliminate the [perceived] need for any racial or ethnic'" discrimination because the academic credentials gap will still be there. [citation omitted] The Court defines this time limit in terms of narrow tailoring, [internal citation omitted] but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. [internal citation omitted]. With these observations, I join the last sentence of Part III of the opinion of the Court.

For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 527, 559, [...] (1896) (Harlan, J., dissenting). 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 equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment.

Social implications

While the decision did uphold affirmative action as a practice, some expressed concern about the social implication of the extent to which the decision revised the definition of affirmative action.

Prior to this case, the "compelling interest" required to justify affirmative action has been correcting the effects of historic discrimination. Put another way, affirmative action was intended to "benefit" blacks or other groups facing historic discrimination.

By contrast, in the majority decision, Justice Sandra Day O'Connor held that the compelling interest at hand lay in "obtaining the educational benefits that flow from a diverse student body." In the essay The New Affirmative Action, an affirmative action supporter criticized the ruling, arguing "Under the terms of the new affirmative action, then, the primary role of Blacks is not as benefactors of the policy, but as diversity servants, catering to the cultural experience of white students." Put another way, the redefined affirmative action is intended to "benefit" white students by exposing them to diversity.

Law adopted post case

Following the decision, petitions were circulated to change the Michigan State Constitution. The measure, called the Michigan Civil Rights Initiative, or Proposal 2, passed and precluded the use of race in the Law School admissions processes. In this respect, Proposal 2 is similar to California's Proposition 209 and Washington's Initiative 200, other initiatives that also banned the use of race in public university admissions decisions.

A recent update on Prop 2:

The United States Court of Appeals for the Sixth Circuit overturned MCRI on July 1, 2011.[2] Judges R. Guy Cole Jr. and Martha Craig Daughtrey said that "Proposal 2 reorders the political process in Michigan to place special burdens on minority interests." Michigan Attorney General Bill Schuette said he will appeal the court ruling.[3] Bill Schutte, Attorney General for the State of Michigan announced his appeal of the Sixth Circuit's decision on July 28, 2011. The MCRI stands in effect until this appeal is complete.[4]

See also

• Gratz v. Bollinger - argued together with Grutter
• List of United States Supreme Court cases, volume 539
• List of United States Supreme Court cases
• Michigan Proposal 2006-2

Further reading

• Bankston, Carl (2006). "Grutter v. Bollinger: Weak Foundations?" (PDF). Ohio State Law Journal. 67 (1): 1–13.
• Devins, Neal (2003). "Explaining Grutter v. Bollinger". University of Pennsylvania Law Review. 152 (1): 347–383. doi:10.2307/3313063. JSTOR 3313063. {{cite journal}}: Cite has empty unknown parameter: |month= (help)
• Levy, Robert A. (2008). "Equal Protection and Racial Preferences". The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Sentinel. pp. 198–214. ISBN 978-1-59523-050-8. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
• Perry, Barbara A. (2007). The Michigan Affirmative Action Cases. University Press of Kansas. ISBN 978-0-7006-1549-0.
• Pollak, Louis H. (2005). "Race, law & history: the Supreme Court from Dred Scott to Grutter v. Bollinger". Dædalus. 134 (1): 29–41. doi:10.1162/0011526053124488.
• Wilkenfeld, Joshua (2004). "Newly Compelling: Reexamining Judicial Construction of Juries in the Aftermath of Grutter v. Bollinger". Columbia Law Review. 104 (8): 2291–2327. doi:10.2307/4099360. JSTOR 4099360.

External links

• Text of Grutter v. Bollinger, 539 U.S. 306 (2003) is available from: Findlaw Justia LII
• Text of Gratz v. Bollinger, 539 U.S. 244 (2003) is available from: Findlaw Justia LII
• Briefs, Decisions and audio recordings (mp3 & realmedia)
• (Oral Argument recording)