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Grutter v. Bollinger & Gratz v. Bollinger: University of Michigan's Race-Conscious Admissions Policies Challenged

In the spring of 2003, the U.S. Supreme Court will hear arguments in two cases that will profoundly impact the future of affirmative action in higher education. The lawsuits against the University of Michigan’s Law School (Grutter v. Bollinger) and the undergraduate College of Literature, Science, and the Arts (Gratz v. Bollinger), both challenge policies that consider race/ethnicity as one factor among many in their admissions decisions. The decisions handed down in these cases, to be heard concurrently, will affect access to colleges and universities for minority students for years to come.

The potential rulings threaten to reverse the Supreme Court’s decision in Regents of the University of California v. Bakke (1978) where the Court concluded that “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions . . .” Most colleges and universities continue to follow the guidelines of Bakke, arguing that student body diversity is a critical element in achieving the institution’s mission and that the consideration of race/ethnicity in admissions is needed to achieve that diversity.

Faced with the lawsuits, the University of Michigan (UM) has fought vigorously to maintain race/ethnic considerations in their admissions processes. UM and prominent social scientists have produced powerful evidence that a diverse student body enriches the experience of all students. On January 18, 2003, UM released a statement titled "Why Michigan's Admissions Systems Comply with Bakke and Are Not Quotas" in response to recent declarations made by President Bush arguing that the use of quotas by UM in admissions processes should be deemed unconstitutional.

Legal and Legislative Backdrop

Recent court challenges have led to the split among the lower courts that the Supreme Court is expected to resolve in the Michigan cases. In 1996, the Fifth Circuit Court of Appeals in Hopwood v. Texas effectively ended all considerations of race in admissions, recruitment, and scholarships at the undergraduate and graduate school level in all public institutions in the Fifth Circuit (Texas, Mississippi and Louisiana).

In Johnson v. Board of Regents (2001), the Eleventh Circuit struck down the University of Georgia’s race-conscious admissions policy as unconstitutional; the court assumed that promoting educational diversity was a compelling interest, but ruled that the policy was unconstitutional because it was not narrowly tailored to advance the interest. Conversely, in Smith v. University of Washington Law School (2001), the Ninth Circuit found the Bakke case to be binding precedent and rejected a challenge to the law school’s race-conscious admissions policy.

Recent legislative and executive policies at the state level have also led to the elimination of affirmative action programs. In July of 1995, The California Board of Regents passed SP-1, a resolution that ended the university system’s use of race, religion, sex, color, ethnicity, or national origin in admissions considerations effective January 1, 1997 (this decision was repealed in 2001). In 1996, California voters passed Proposition 209, legislation that also eliminated affirmative action in education, employment, and contracting throughout the state. Washington voters passed Initiative 200 in November 1998, which restricts the use of race/ethnicity in employment, education, and contracting decisions. And in 1999 in Florida, affirmative action was not ended by a ballot initiative or by litigation, but by executive order from Governor Jeb Bush.

Michigan Case Status

In separate challenges to the undergraduate admissions policy and law school admissions policy at the University of Michigan, the trial courts yielded inconsistent decisions. The district court in the University of Michigan undergraduate case, Gratz v. Bollinger, found social science evidence to be persuasive because it suggested that (1) students learn better in a diverse environment, (2) students are better prepared to be active participants in a pluralistic society, and (3) diversity serves to break down historical patterns of racial segregation.

The trial court in the Grutter case, while acknowledging the educational benefits of diversity, nevertheless struck down the law school’s policy as unconstitutional, ruling that promoting diversity is not a compelling interest and the law school’s whole-file review policy was not narrowly tailored.

Both the law school case and the undergraduate case were appealed to the Sixth Circuit, which issued an opinion in May 2002 reversing the trial court in the law school case and finding that Bakke is still binding precedent and that the law school policy is narrowly tailored. Although the Sixth Circuit had not yet issued an opinion in the undergraduate case, the plaintiffs filed petitions for certiorari for both cases before the U.S. Supreme Court. On December 2, 2002, the Supreme Court agreed to hear the appeals in both the undergraduate case and the law school case. Briefs are being submitted to the Court in January and February of 2003, with oral arguments to be held in March of 2003.

Decisions in the cases were made on June 23, 2003. For a review and joint statement of constitutional law scholars, visit Court Decisions of our Policy Action section.

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