Grutter v. Bollinger: Race Consideration in College Admissions (05/23/2003)

Grutter v. Bollinger

Does the University of Michigan Law School’s use of racial preferences in student admissions infringe upon the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Argued: 04/01/2003

Decision Date: 05/23/2003

Decision Record: 5-4; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg. Stephen Breyer

Justices Dissenting: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas

Effect of the Decision

This case ruled that the use of a student’s race is permitted when deciding the admission of college students.

In Favor

In the favoring side of this case, on the side of Grutter, attorney Kirk O. Kolbo argued, “Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her.

That race… that the application would be considered for free from the taint of racial discrimination.

The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body.

With the loss… with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogenous mass.

It is precisely because we are a nation teeming with different races and ethnicities… one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.”


In the opposition, on the side of Earls, attorney Theodore B. Olson argued, “The Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences.

We respect the opinions of those individuals, but the position of the United States is that we do not accept the proposition that black soldiers will only fight for… black officers or the reverse that race neutral means should be used in the academies as well as other places.”


On the side of the majority, Justice Sandra Day O’Connor wrote the opinion for the court. She wrote, “In summary, the Equal Protection Clause 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. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.”

In opposition, Justice William Rehnquist wrote, “Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v. Paradise480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the … duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny–that a program be limited in time–is casually subverted.

    The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.”

Also disagreeing with the majority, Justice Anthony Kennedy wrote, “It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.”
In a separate opinion, Justice Antonin Scalia wrote, “Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” ante, at 24, and sufficiently avoids “separate admissions tracks” ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “ ‘good faith effort’ ” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “ ‘a permissible goal.’ ” Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478 U. S 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords “a degree of deference to a university’s academic decisions,” ante, at 16, “deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses–through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases.”
Also writing his own opinion, Justice Clarence Thomas wrote, “Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant’s LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker’s behavior is responsive to the Law School’s admissions policies.16 Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot’s prophecy about black underperformance–just as it confirms the conspiracy theorist’s belief that “institutional racism” is at fault for every racial disparity in our society.

    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 “ ‘eliminat[e] the [perceived] need for any racial or ethnic’ ” discrimination because the academic credentials gap will still be there. Ante, at 30 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 30, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.”

My Opinion:

In this case, I agree with the minority very strongly. Even after writing an opinion about two other cases very similar to this one, I still fail to come to terms with how taking a person’s race into consideration when deciding their admission is not a violation of the Fourteenth Amendment, even if it’s just a little bit. If a person deserves to get into a specific college because they have worked hard for it and have good grades, they should very well get in, but if it’s something as simple as their race holding them back; something they literally have no control over, that’s fair well a complete violation of the Fourteenth Amendment, which guarantees “equal protection under the law.” “Diversity” is not an advantage. A person is more likely to choose to attend a college because they have a long record of successful alumnis or good professors teaching a major that specific person is interested, than simply because they have diversity. There is practically zero benefit of having a diverse environment other than the students there get to experience different cultures, etc, which could be easily done in such a diverse country such as the United States. I fail to see why race should be taken into account for admissions now, and I will continue to be bewildered by this far in the future. Like Antonin Scalia wrote, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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