This Day in Supreme Court History—June 23, 2003

On this day in 2003, the Supreme Court decided Grutter v. Bollinger, one of the Court’s most important rulings on the constitutionality of affirmative action. In a 5-4 ruling, the Court upheld the admissions policy of the University of Michigan Law School, which used race as one factor in its evaluation of applicants.

Challenging the law school’s affirmative action policy was Barbara Grutter, a white student who claimed that her constitutional rights were violated because she had been denied admission while racial minority candidates with lower GPAs and test scores had been admitted. Grutter’s supporters hoped that the Court would use her case as an opportunity to overrule Regents of the University of California v. Bakke, the 1978 Supreme Court decision that struck down racial quotas but allowed for more flexible, “holistic” use of racial preferences for purposes of increasing diversity in higher education.  

Affirmative action opponents won a partial victory in Gratz v. Bollinger, decided on the same day as Grutter. In this case a five-justice majority of Court struck down the racial preference policy used by for undergraduate admission to the University of Michigan, which used a points-based admission system that assigned a certain number of points for racial-minority status.

But Justice O’Connor, who joined the majority striking down the undergraduate policy in Gratz, joined the four dissenters in that case (Justices Stevens, Souter, Ginsburgand Breyer) to form a majority to uphold the law school’s policy in Grutter. She reiterated Bakke’s holding that states had a “compelling interest” in creating racial diversity in their institutions of higher education and then held that the law school’s racial preference policy was “narrowly tailored” because the law school “considers race only as a plus in a particular applicant’s file and gives serious consideration to all the ways besides race that an applicant might contribute to a diverse educational environment.” The law school’s effort to ensure a “critical mass” of minority students “operates neither as a quota nor a two-track admission system.”

In his dissent, Chief Justice Rehnquist denounced the law school’s program as nothing more than “a naked effort to achieve racial balancing.” He argued that the law school policy, like the undergraduate admissions policy, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia wrote his own acerbic dissented in which he lamented that “today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation” over affirmative action.

Justice Thomas wrote a long, powerful, and personal dissent. He began by quoting the great African American abolitionist Frederick Douglass, who gave a speech in 1865 denouncing the harms caused by white “interference” with blacks. “Do nothing with us!” Douglas demanded. “Like Douglass,” Thomas wrote “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Although modified somewhat in the recent Fisher v. University of Texas decisions, Grutter remains basically intact today. Universities are permitted to use racial preferences in selecting their incoming classes, so long as they are doing so in order to advance a goal of diversity and so long as they use a flexible process of evaluation in which race is only one factor among many.

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