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Reaffirming Diversity: A Legal Analysis of the University of Michigan Affirmative Action Cases

Authors: The Civil Rights Project, Erwin Chemerinsky, Drew Days III, Richard Fallon, Pamela S. Karlan, Kenneth L. Karst, Frank Michelman, Eric Schnapper, Laurence H. Tribe, Mark Tushnet, Angelo N. Ancheta, Christopher F. Edley, Jr.
Date Published: July 08, 2003

On June 23, 2003, the United States Supreme Court issued a ruling in Grutter v. Bollinger and upheld the constitutionality of race-conscious admissions policies designed to promote diversity in higher education.
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Introduction    


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 student body diversity is a compelling governmental interest that can justify the use of race as a “plus” factor in a competitive admissions process. Applying its “strict scrutiny” standard of review within the context of higher education, 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 held that the University’s current undergraduate admissions policy was not narrowly tailored to advance an interest in diversity because it was not sufficiently flexible and did not provide enough individualized consideration of applicants to the University.

In ruling that the promotion of student body 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 Mississippi to use race-conscious admissions policies designed to advance 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 employ properly designed race-conscious policies consistent with their obligations under Title VI of the Civil Rights Act of 1964 and other federal laws.

Taken together, the Court’s opinions in the Grutter and Gratz cases reinforce the importance of flexible and holistic admissions policies that employ a limited use of race. 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. Institutions that have adopted more restrictive policies than the Court's decisions allow may wish to 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 student body diversity supplies a justification for race-conscious recruitment and outreach, as well as for financial aid and support programs. The Supreme Court did not 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 they are designed to advance diversity. The outcome of a legal test of such a program in the Supreme Court is uncertain; however, because the burdens on non-minority students in most of these programs are diffused and considerably less than in admissions decisions, the constitutional scales established by the recent decisions by no means tip obviously against these programs, especially not against programs in which individual applicants are given a “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 acknowledges the importance of diversity in other contexts, including K-12 education, government, and private employment and business. For instance, the Court states 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.” This and other statements by the Court imply that diversity may be a constitutional predicate for race-conscious affirmative action programs in areas outside of higher education.

This Paper analyzes the University of Michigan cases and discusses their impact on higher education policy making and on the constitutional assessment of affirmative action programs. The Paper is divided into three parts. Part I examines the U.S. Supreme Court’s opinions in the Grutter and Gratz cases and discusses the constitutional boundaries for race-conscious admissions policies established by the Court. Part II examines the appropriate use of race in higher education admissions policies, as well as race-conscious financial aid, recruitment, and support programs. Part III examines the potential impact of the decisions on areas outside of higher education, including K-12 education and employment.

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