Grutter v. Bollinger: Joint Statement of Constitutional Law Scholars

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 Law
Center for Excellence in Teaching
University of Southern California Law School

Drew Days III
Alfred M. Rankin Professor of Law
Yale Law School
   
Walter Dellinger
Douglas Maggs Professor of Law
Duke University Law School    

Richard Fallon
Professor of Law
Harvard Law School    

Lani Guinier
Bennett Boskey Professor of Law
Harvard Law School

Pamela Karlan
Kenneth and Harle Montgomery Professor of Public Law
Stanford University Law School

Kenneth L. Karst
David G. Price and Dallas P. Price Professor of Law Emeritus
UCLA School of Law

Frank Michelman
Robert Walmsley University Professor
Harvard Law School

Eric Schnapper
Professor of Law
University of Washington School of Law
   

Laurence H. Tribe
Ralph S. Tyler, Jr. Professor of Constitutional Law
Harvard Law School    

Mark Tushnet
Carmack Waterhouse Professor of Constitutional Law
Georgetown University Law School