The University of Michigan Affirmative Action Cases: Racial Diversity in Higher Education

CRS Report for Congress
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The University of Michigan
Affirmative Action Cases:
Racial Diversity in Higher Education
Upda ted J uly 15, 2003
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

The University of Michigan Affirmative A ction Cases:
Racial Diversity i n Higher Education
The United S tates S upreme C ourt concluded its 2002-03 term wi t h a p air o f
much anticipat ed rulings in the University of Michigan affirmative action cas es . In
Grutter v. Bollinger a 5 to 4 m aj ority of t h e J ustices held that the University Law
School had a “compelling” interest in the “educational b enefits that flow fr o m a
diverse student body,” which justified its race-based efforts t o construct a “critical
mass” of “underrepresented” minority students. But i n a companion decision, Gratz
v . Bollinger , six J ustices deci ded t hat t he University’s policy of awarding “raci al
bonus poi nts” to minority applicants was not “narrowl y t ailored” enough t o pas s
constitutional s crutiny. The M ichigan cas es revisited c onstitutional t errain first
surveyed by t h e H i gh C ourt a quart er cent u ry ago i n University of California Regents
v. Bakke . Unfortunately, t he inability of the Bakke J u st i ces t o achi eve any s o r t o f
consensus l ed in the i ntervening period to a circuit conflict over t he constitutionality
of policies t o achieve raci al and ethnic diversity in higher education. It remained for
the C ourt i n M ichigan cases to resolve t he doctrinal muddle l eft i n Bakke’s wake.

TheLegacyofBakke ...........................................1
TheUniversityofMichigan Admissions Policy. ......................3
TheSupremeCourtRulings ......................................4
Conclusion ...................................................7

The U niversity o f Michigan Affirmative
Action Cases: Racial Diversity in H igher
The United States Supreme Court concluded its 2002-03 term with a pair of
much anticipat ed rulings in the University of Michigan affirmative action cas es . In
G rutter v. Bollinger1 a 5 to 4 m aj ority of the J ustices held that the University La w
School had a “compelling” interest in the “educational b enefits that flow from a
di v e r s e s tudent body,” which j ustified its consideration o f race in admissions to
assemble a “critical mass” of “underrepr esented” minority students. But i n a
com p ani o n d eci si on, Gratz v. Bollinger , 2 si x J ust i ces deci ded t hat t h e Uni v ersi t y’s
policy o f awardi n g “racial bonus points” to minority applicants was not “narrowly
tailored” enough t o p ass constitutional s crutiny. The M i c h i gan cases revisited
constitutional t errain surveyed by the High C ourt a quarter century ago i n University
of California Regents v. Bakke. 3 Unfortunately, t he inability of the Bakke J ustices to
achi eve any s ort o f consensus l ed m any years l at er t o a ci rcu i t c o n fl i ct over t he
constitutionality of policies t o achieve raci al and ethnic diversity in higher education.
It thus remained for t he Court i n t he Mich igan cases to resolve t he doctrinal muddle
left in Bakke’s wake.
Constitutionally speaking, the central question was whet her Michigan’s
admissions policies p ass “strict” j udici al scrutiny, as demande d b y t h e Supreme
Court when evaluating any race-based governmental action under t he Equal
Protection C lause. Strict scrutiny requires t hat any state classification o f p ersons by
race or et hnicity be “narrowly t ai l o red” to serve a “compelling” governmental
interest. The Court has long recogn i z ed t he government’s compelling i nteres t i n
remedyi n g i t s own pas t discrimination. The M ichigan cas es pressed t he
constitutional debat e a step f u r t h er. Absent a history of past discrimination, they
as k e d f irst, whether the university has a “compelling” interest in any educational
benefits that may flow from a racially diverse s tudent body. And second, were the
means adopted by the univer s i t y “ n arrowl y t ailored” — o r n o m ore t han n ecessary
— t o achi eve t h at obj ect i v e.
The Legacy of Bakke
S eeds o f t he present cont roversy are t raceabl e t o J u st i ce P owel l ’s opi ni on i n
Bakke. Bakke inv o l v e d a “ dual t rack” admissions process t o t he University of

1 123 S.Ct 2325 (2003).
2 123 S.Ct 2411 (2003).
3 438 U.S. 265 (1978).

California at Davis medical school, which set aside 16 of 100 places in each
incoming class for minority students. Qualifications of minorities accepted under t he
speci al adm i ssi ons program w ere n ever di rect l y com p ared wi t h t h e general appl i cant
pool for t he other 8 4 p laces. A classic t wo track system , o n l y m i n orities were
c o n s i d ered for 1 6 reserved s eat s: di fferent cri t eri a, cut o ff scores, and no d i r e c t
competition bet ween minority and white applicants. Bakke, a white male, was twice
rejected while minorities with lesser academic qualifications were admitted.
J ustice P owel l s plit the difference bet ween two four-J ustice pluralities i n Bakke.
One camp, led b y J ustice S tevens, s truck down t he admissions quota on s tatut o r y
civil rights grounds. Another l ed by J u s tice Brennan would h ave upheld the m edical
school’s policy as a remedy for s ocietal d iscrimination. J u stice P owell h eld t he “dual
admissions” procedure t o be unconstitutional, and ordered Bakke’s admission. But,
he concluded, the s tate’s interest in educational diversity could j ustify consideration
of st udent s’ race i n cert ai n ci rcum st ances. For J u stice P owell, a d iverse student
bo d y f o stered the “robust” ex change of ideas and academic freedom deserving o f
constitutional protection.
J ustice P owell’s t heory of diversity as a compelling governmental interest did
not turn on race alone. He pointed with a pproval t o t he “Harvard Plan,” which
defined diversity in term s o f a broad array o f fact ors and charact eri s t i cs. Thus, an
appl i cant ’s race coul d b e d eem ed a “pl us” fact or. It w as consi d ered on a p ar wi t h
personal t alents, l eadership qualities, family background, or any o ther factor
contributing t o a diverse s tudent body. However, t he race of a candidate could not
be the “sole” or “determin at i v e” fact or. No other J ustice j oined i n t he Powell
For n early two d ecades, colleges and universities relied o n t he Powell opinion
in Bakke to support race-conscious student diversity policies. Consideration o f race
in admissions, wh i c h t o o k various form s, stood pretty much unchallenged until
Hopwood v . S t a t e o f T exas.4 A p anel of the Fifth Circuit repudiated the P owell
diversity rationale when it voided a special admission program o f t he University of
Tex as l aw school. Unlike Bakke, t he Tex as program entailed no ex plicit raci al
quota. Bu t, in o t h e r r e s p e c t s, it was a classic dual t rack system: one standard for
blacks and Hispanics, another for everyone el se, and cutoff scores for minorities were
l o wer. The P owel l opi ni on was not bi ndi ng precedent , t h e Hopwood panel ruled ,
since i t was not joined by any o ther justic e . T hus, race could b e considered in
admis s i o n s only t o remedy p ast d iscrimination b y t he law s chool itself, which was
not shown i n Hopwood .
Two other federal circuit courts, bes ides the S ix th Circuit i n t he Michigan cas e,
had l ooked at race-based co llege admissions since Bakke. J o h n s o n v . B o a r d o f
Regents 5 struck down t he award o f “racial bonus ” points t o minority students as one
of 12 factors — academic and nonacademic — considered for freshman admissions
to the University of Georgi a. The Eleventh C ircuit majority was s k e p t i cal of the
Powell opinion but did not take a s tand on the d i v ersi t y i ssue. In st ead, t he program

4 95 F.3d 53 (5th Cir.), cert. denied No. 95-1773, 116 S. Ct. 2581 (1996).
5 263 F.3d 1234 (11 th Cir. 2001).

failed t he second requirement of strict scru tiny. It was not “n arrowly t ailored.” That
is, i t “mechanically awards an arbitrary ‘diversity’ bonus to each and every non-white
applicant at a deci sive stage i n t he admissions process.” At t he same time, t he policy
arbitrarily limited t he number o f nonracial fact ors t hat could b e considered, all at the
ex pense o f white applicants, even t hos e whose s ocial o r economic background and
personal t raits would p romote “ex periential” diversity. On t he other hand, the Ninth
Circ u i t u p h eld t he minority law s chool admissions program at t he University of
Washingt on on the basis of Bakke. The appeal s court in Smith v. University of
Washington Law School 6 concluded t hat t he four Brennan J ustices who approved o f
the racial quota i n Bakke “woul d h ave em b raced [ t he di versi t y rat i onal e] i f n eed be.”
J u st i ce P owel l ’s opi ni on t hus becam e t he “narrowest foot i n g” for approval o f race
in admission and was the “holding” of Bakke.
The University of M i chigan Admissions Policy.
The j udi c i al divide over t he student diversity policies d eepened with the
Mi chi gan case. That case i s real l y t w o cases. O ne federal d i s t ri ct court i n Grutter
originally struck down t he student diversity policy of t he University of Michigan Law
School . Another j udge upheld a procedure awarding points t o “underrepres ented
minority” applicants to the undergraduate school.7 Bas e d o n Bakke,theSixthCircuit
reversed Grutter and p ermitted t he Law S chool to consider race in admissions. 8 The
Supreme C ourt granted certiorari in Grutter and agreed t o revi ew Gratz prior t o
judgment by the S ix th Circuit.
U n d e r g r aduate admission to the University of Michigan had b een based o n a
point system or “student s e l e c t i o n i ndex .” A total possible 150 points could be
awarded for f a c t o r s , academ i c and o t h erwi se, t hat m ade u p t he sel ect i o n i ndex .
Academic factors accounted for u p t o 110 points, including 12 for s tandardiz ed test
performance. By comparison, 20 points coul d b e awarded for one, but only one, o f
the following: m embership i n an underrepresented minority group, socioeconomic
di sadvant age, or at hl et i cs. Appl i cant s coul d recei ve one t o four poi nt s for “l egacy”
or alumni relat i onships, t hree points for personal essay, and five points for
com m uni t y l eadershi p and s ervi ce, si x poi nt s for i n -st at e resi dency, et c. In pract i ce,
students at t he ex tremes of academic perfo rmance were typically admitted o r rejected
on that basis alone. But for t he middle ran ge o f qualified applicants, t hese other
factors we r e o ften determinative. Fi nally, counselors could “flag” applications for
review by the Admissions Review Committee, where any factor important to the
freshman class composition — race incl uded — was not adequately reflect ed in the
selection i ndex s core.
In upholding this policy, t h e district court i n Gratz found that Bakke and t he
University’s own evidence demonstrating the educational b enefits of racial and ethnic
diversity es tablished a co m p elling s tate interest. And the award of 20 points for
minority status was not a “quota” or “dual t rack” s ys t e m , a s in Bakke, but only a

6 233 F.3d 1188 (9th Cir. 2000).
7 Gr atz v. Bollinge r, 122 F. Supp. 811 (E.D. M ich. 2000).
8 Gr utter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).

“plus fact or,” to be weighed against others in the s el ection process. Th u s , t h e
constitutional dem and for “narrow t ailoring” was satisfied. The Gratz district court
also conclude d t hat “vigo rous minority recruitment” and other race-neutral
alternatives to the current policy would not yi eld a “sufficiently diverse s tudent
Generally setting t he bar fo r ad m i ssion to the M ichigan Law School was a
“sel ect i o n i ndex ” based o n appl i cant s ’ composite LS AT score and und e r gr a d u ate
GPA. A 1992 policy s tatement, however , m ade an ex p licit commitment to “racial
and et hni c d i v ersi t y,” seeki n g to enroll a “critical m ass” of bl ack, M ex i can-Am eri can,
and Native American students. The objective was to enroll minority students i n
sufficient numbers to enable their p articipa t i o n i n classroom discussions without
feeling “isolated or like s pokesmen for t heir race. ” T o foster, “distinctive
perspect i v es and ex p eri ences,” adm i ssi on offi cers consider a range of “soft v ari abl es”
— e.g. t alents, i nterests, ex p eriences, and “underrepresented minority” s tatus — in
their admissions decisions. In t he cours e o f e a ch year’s admissions process, the
record showed, m i nori t y adm i ssi on rat es w ere regul arl y report ed t o t rack “t he raci al
composition o f t he developing class.” The 1992 policy replaced an earlier “special
admissions program,” which set a written goal of 10-12% minority enrollment and
lower academic requirements for those groups. The district court i n Grutter made
several k ey findings: there i s a “heav y emphasis” on race in the l aw school
admissions process; that over a period of time (1992- 1998) minorities ranged from
11% to17% of each incoming class; and t hat l arge numbers of minority students were
admitted with index s cores t he same as or lower t han unsuccessful white applicants.
Writing for the Si x t h C ircuit majority, J udge M artin adopted the P owell position
in Bakke to find that the l aw school had a compelling i nterest i n achieving a racially
diverse s tudent body, and that its admission’ s policy was “narrowly t ailored” to that
end. “S oft v ariables” were found to treat each applicant as an i ndividual and to be
“virtually indistinguishable” from “plus factors” and t he Harvard P lan approved b y
J ustice P owel l i n Bakke. The law s chool’s policy “did not set-aside o r reserve” s eats
on the b asis of race. Rather, i n pursuit of a “critical mass,” t he policy was design ed
to ensure that a “meaningful number” of mi nority students were able “to contribute
to classroom dialogue without feeling i solated.” The m ajority opin i o n further
emphasiz ed t hat t he admissions program was “flex i ble,” with no “fix ed go al or
target;” that it did not use “separate tracks” for minority and nonminority candidates;
and d id not function as a “quota s ys tem.”
The Supr eme Cour t Rul i ngs
The S upreme C ourt h anded down its rulings in the M ichigan cases on J une 23,
2003. Writing for the m ajority in Grutter was J ustice O’Connor, who was j oined b y
J u stices Stevens, Souter, Ginsburg, and Br eyer i n upholding the Law School
admissions policy. Chief J ustice R ehnquist authored an opinion, in which J ustices
O’Connor, S calia, Kenne d y, and Thomas joined, s triking down t he University’s
undergraduate racial admissions program. J u s t i c e Breyer added a six t h vote t o
invalidate t he racial bonus system in Gratz , but declined to join the m aj ority opinion.
A rem arkabl e aspect of t h e Grutter majority opinion was t he degree to which
it echoed t he Powell rationale from Bakke. Settling, for t he pres ent, the doctrinal

i m b rogl i o t h at had consum ed so m u ch recent l ower court at t ent i on, J u st i ce
O’Connor quoted extensively from J ustice Powell’s opinion, finding it to be the
“touchstone for constitutional analysis of race-conscious admissions policies.” But
her opinio n w a s n o t without its own possible doctrinal innovations. Overarching
much of her reasoning were two p aramount themes, t hat d rew considerable criticism
from J ustice Thomas and his fellow dissenters. Fi rst, in applyi ng “s trict s crutiny” to
the racial aspects o f t he Law S chool admissions program, J u stice O’Connor stressed
the s ituational nat ure of constitutional i nterpretation, taking “relevant differences into
account.” Thus, t he majority opines, “[ c] ont ex t m atters when reviewing race-based
governmental acti o n ” for equal p rotec tion purposes and “[ n ] o t every decision
influenced by race is equally objectionabl e,” but may d epend upon “the importance
and t he si nceri t y of t h e reaso n s a d v anced by t h e governm ent al deci si onm aker” for
that particular use o f race. S e cond, and e qually significant, was t he deference
accor d e d t o t h e j u d g m e n t o f e d u c a t i o n a l d e c i s i o n m a k e r s i n d e f i n i n g t h e s c o p e o f t h e i r
academ i c m i s s i o n , even i n regard t o m at t ers of raci al and et hni c d i v ersi t y.
“[ U ] niversities o ccupy a s pecial niche in our constitutional t radition,” J ustice
O’C onnor s t ates, such t hat “[t]he Law School’s educational j udgment . . .that
divers i t y i s essential t o its educational mission is one to which we d efer.”
Institutional “good faith” would be “pres umed” i n t he absence of contrary evidence.
J ustice Thomas’ dissent, j oined by J ustice S calia, t ook particular ex ception t o what
he viewed as “the fundamentally flawed pr oposition t hat racial discrimination can be
contex tualized” — deem ed “compelling” for one purpose but not another — or that
strict scrutiny p ermits “any s ort o f d eferen ce” to “the Law S chool’s conclusion that
its racial ex perimentation l eads t o educati onal b enefits.” Indeed, t he dissenters found
such deference t o be “antithetical ” t o t he level of s earch i ng review dem anded by
Satisfied that the Law School had “compe lling” reasons for pursuing a racially
diverse s tudent body, t he Court m oved t o t he second phase of strict scrutiny analysis.
“Narrow t ai l o ri ng,” as not ed, requi res a cl ose fi t bet ween “m eans” and “end” when
the state draws any distinction based on race. In Grutter, t he concept o f “cri t i cal
m ass,” s o t roubl i n g t o s everal J u st i ces at oral argu m ent , won t h e m aj ori t y’s approval
as “necessary t o further its compelling i nteres t i n s ecuring the educational benefits
of a d iverse student body.” In this portion o f h er opinion, J u stice O’Connor draws
chapter and verse from t he standards articulated by J u stice P owell i n Bakke.
We find that the Law School’s admi ssions program bears t he hallmarks of
a narrowl y t ailored plan. As J usti c e P o well made clear in Bakke, t ruly
indivi dualized considerati o n demands that race be used in a f lexible,
non mechanical way. It follows from t his mandate that universities cannot
estab l i s h quotas for members of certain racial gr oups or put members of t hose
gr oups on separate admi ssi o ns t racks. Nor can universities i nsulate applicants
who belong to certain racial or ethnic groups from t he competition f or admi ssion.
Universities can, however, consider race or ethnicity more flexibly as a “ p l us”
factor in the context of i ndivi dualized consideration of each and every applicant.
J u stice O’Connor drew a k ey distinction b etween forbidden “quotas” and permitted
“goals,” ex onerating t he Law S chool ’s admission program from constitutional
jeopardy. She observes t hat both approach es pay “some attention t o numbers.” Bu t
while the former are “fix ed” and “reserved ex clusively for certain minority groups,”
the opinion continues, the Law S c hool’s “goal o f attaining a critical mass” of

minority students required only a “good faith effort” by t he institution. In addition,
J u stice O’Connor notes, minority Law S chool enrollment between 1993 and 2000
varied from 13.5 to 20.1 percent, “a range inconsistent with a quota.” R esponding,
in his separat e dissent, t he Chief J ustice object ed that the notion of a “critical mass”
was a “s ham,” or s ubterfuge for “raci al balancing,” s ince it did not ex plai n disparities
in the proportion of t he three minority groups admitted under its auspices.
Other factors further persuaded t he Court t hat t he Law S chool admissions
process was narrowly t ailored. By avoidi ng racial or ethnic “bon u s e s ,” the policy
permitted consideration o f “all p ertinent elements o f d iversity,” racial and nonracial,
i n “a hi gh l y i ndi vi dual i z ed, hol i s t i c revi ew of each appl i cant ’s fi l e.” J u st i ce
O’Connor also found that “race neutral alternative s ” h ad been “sufficiently
considered” b y t h e La w S chool, although few specific ex amples are provided.
Im portantly, however, t he opinion makes p lain that “ex haustion” of “every
concei vable alternative” is not constitutionally required, only a “s erious good faith
consi d erat i o n o f w orkabl e race-neut ral al t ernat i v es t h at wi l l achi eve t h e d i v ersi t y t h e
university seeks.” C onsequently, t h e Law S chool was not required t o consider a
l o t t ery or l o weri ng of t radi t i onal academ i c benchm arks — GP A and LS AT s cores —
for all appl i cants since “thes e alternatives would require a dramatic sacrifice of
diversity, t he academic quality of all admitted s tudents, or both.” And, because the
admissions program was based o n i ndividual assessment of all pertinent elements of
diversity, i t d id not “unduly burden” non-minority applic a n t s . Nonetheless, as she
had during o r al argument, J u stice O’C onnor emphasiz ed t he need for “reasonable
durational p rovisions,” and “periodic review s ” b y i nstitutions conducting s uch
programs. To d rive home t he point, t he majority con cludes with a general
adm oni t i on. “W e ex p ect t h at 25 years from now, t he use o f raci al preferences wi l l
no longer be necessary to further t he interest approved t oday. ”
Besi des J ust i ces Thom as and S cal i a, and t he C hief J u stice, another d issenting
opinion was filed b y J ustice Kennedy, who agreed w i t h his b rethren t hat t he
“constancy” of minority admi ssions over a period of years “raised a s uspicion” of
racial balancing t hat t he Law S chool was re quired b y t he rigo rs of strict scrutiny t o
rebut. Arguing from d ifferent statistics t han t he majority, h e found “little deviation
among admitted minority students from 1995 to 1998,” which “fluctuated only b y
0.3% from 13.5% to 13.8" and “at no point fell below 12%, h istorically defined b y
the Law School as the bottom o f its critical mass range.” In addition, he contended,
the u se of daily reports on minority admissions near the end of the p rocess s hifted the
focus from i ndividualiz ed review of each a pplicant t o i nstitutional concerns for t he
num eri cal obj ect i v e d efi n ed by a “cri t i cal m ass.” For t h ese reasons, h e agreed wi t h
his fellow dissenters that deference to the Law School in this situation was
“antithetical to strict scrutiny, not consistent with it.”
The four Grutter disse n t e rs were j oined b y J ustices O’Conner and Breyer in
stri king down t he raci al bonus syst em for undergraduate admissions in Gratz .
Basically, t he same factors t hat s aved the Law School policy, by t h e i r a bsence,
conspired t o condemn the undergraduate program, in the eyes o f t he majority. S ince
the university’s “compelling” interest in raci al s t u d e nt diversity was s ettled i n
Grutter, t he com p ani o n case focused on t h e reasons why t he aut o m at i c award o f 2 0
admission points t o minor i t y applicants failed t he narrow t ailoring aspect of strict
scrutiny analysis. Relying, agai n, on the P owel l rat i onale in Bakke, t he policy was

deem ed m o re t h an a “pl us” fact o r , a s i t d eni ed each appl i cant “i ndi vi dual i z ed
consideration” by making race “deci sive” for “virtually every mini m a l l y qualified
underrepresen t e d minority applicant.” Nor did t he procedure for “flaggi ng”
individual applications for additional revi ew resc u e t he pol i cy s i n ce “such
consideration i s t he ex ception and not the rule,” o ccurring — i f at all — only after
the “bulk of admission decisions” are made based on t he point system. The opinion
of the C hief J ustice rej ect ed the University’s argument based on “administrative
convenience,” t hat t he volume o f freshman applications makes i t “ i m p ractical” t o
apply a more individualized review. “[T]he fact that the implementation of a
program capable of providing individuali z e d consideration might pres ent
administrative challenges does not render constitutional an otherwise problematic
system .” Fi nally, t he majority makes plain that its constitutional holding in Gratz is
fully applicable to privat e colleges and universities pursuant t o t he federal civil rights
laws. “We have ex plai ned t hat discrimination t hat violates t he Equal P rotection
Clause of the Fourteenth Amendm ent committed b y an i nstitution t hat accepts federal
funds also constitutes a violation of Title VI [ of t he 1964 Civil R ights Act] .”
J u stice O’Connor, concurring in Gratz , em phasi z ed t he “m echani cal ” and
“automatic” nat ure of t he selection i ndex scoring, which distingu ished i t from t he
Law S chool program, and m ade impossible any “nuanced judgments” concerning
“the particular background, ex periences, o r qualities o f each parti c u l a r candidate.”
S h e agreed that the Admissions Review Committee was only an “ex ception,” an d
“kind o f an afterthought,” particularl y s i n c e t he record was b arren o f evidence
concerning its methods of operation and “how the d ecisions are actually made.”
Dissenting opinions were filed j ointly, b y J ustice s S t evens and Souter, and
separately by J u stice Ginsburg. The former argued o n t echnical grounds that since
the n amed petitioners had already enrolled i n o ther schools, and were not presently
s eeking freshman admission at the uni versity, t hey l acked standing to seek
prospective relief and the appeal should b e d ismissed. Bu t J ustice S outer ar gu ed
separately on the m erits that the M ichi gan undergrad u a t e admission program was
sufficiently different from t he racial quota i n Bakke to be constitutionally acceptable.
At the v ery l east, he felt, a m ore appropriate course would b e t o remand t he case for
further d evelopment o f t he record to determine whether the entire “ a d m i s s i ons
process, i n cl uding review by the [ Admissions Review Committee] , results in
i ndi vi dual i z ed revi ew suffi ci ent t o m eet t h e C ourt’s s t a n d a r d s . ” J ustice Ginsburg
found “no constitutional i nfirmity” i n t he Michigan program s ince only “qualified”
applicants are ad mitted, the current policy is not intended “to limit or decrease”
admissions of any racial or ethnic group, and admissions of nonminority groups is
not “unduly restricted.” More broadly, she opined t hat government decisionmakers
m ay p roperl y d i s t i n gu i s h b et ween pol i ci es o f i ncl u si on and ex cl u si on, because t h e
former are more likely to comport with constitutional imperatives of individual
The M i chi gan cases r e s o l v e d an i ssue t hat h ad vex ed t he l o wer federal court s
for a quart er cent u ry. H i s t o ri cal l y, j udi ci al i n si st ence on st ri ct scrut i n y h as l argel y
con d e m n ed governmental distinctions based o n race ex cept i n t he m o st narrowl y
ci rcu m s c r i b e d rem edi al o r n at i onal s ecuri t y ci rcum st ances. T o t he short l i s t o f

governmental interests sufficiently “compelling” to warrant race-based
deci sionmaking a majority of the C ourt has now added t he pursuit of diversity in
high er education . Bu t t his ex p ansion is not without qualification and may require
further j udicial elaboration b efore its implications are fully known. Sign ificant h ere
is J u stice O’Connor’s emphasis upon contex tualism when applyi ng str i c t j u d i cial
revi ew and d eference t o t h e j udgm ent of educat ors i n t h e form ul at i o n o f d i v ersi t y
p o licies. Any s uch policy, it now seem s, must be suffici ently flex ible to permit
i ndi vi dual i z ed assessm ent o f each appl i cant o n a range o f fa c t ors — academ i c and
n o n academ i c — whi ch m ay i ncl ude, but not be dom i n at ed by, race or et hni c i t y.
Affording great er latitude, however, t he good faith of the i nstitution i s “pres umed,”
absent suffi ci ent cont rary evi d ence.
Bu t t he seeds o f future controversy m ay lie in questions argu ably raised but not
fully addressed by t he latest rulin gs . A s outlined by J ustice S calia in his Grutter
Some future lawsuits will presumably focus on whether the discrimi n a t ory
scheme in question c o ntains enough evaluation of t he applicant ‘ as an
individual,’...and sufficientlyavoids “separateadmissiontracks” ... Some
will focus on whether a unive rsity has gone beyond the bounds of a “ good faith
effort” and has so zealously pursued its ‘crit i cal mass’ as to make it an
unconstitutional de facto quota system, rather than merely ‘a permissible goal.’
. . .And still other suits may claim that the i nstitution’s r acial preferences have
gone below or a bove t he mystical Grutter- approved ‘critical mass.’
Beyond edu c a t i on, issues may i nevitabl y arise concerning the implications of
Grutter on efforts t o achieve racial diversity in other s ocial and economi c s p h eres.
J u stice O’Conno r ’ s o p i nion noted the “speci al niche” occupied by universities, in
matters of educational policy, particularly when preparing s tudents for military
service or t o compete in a m ulticultural and gl obal economy. As amicus briefs in the
Mi chi gan cases at t est , corporat e Am eri ca’s i nt erest i n d evel opi ng a raci al l y di verse
workforce m ay be no less keen. But current standards under t he federal civil righ ts
laws generally allow for consideration of race in hiring and promotion deci sions only
in response t o d emonstrab l e evidence of past discrimination b y t he employer. No
rule of deference like t hat ex t ended t o educational i nstitutions has been recognized
for employers, nor is one necessarily implied by t he Michigan cas es .
Finally, a note o n race-neutral alternatives, and the position t aken by the United
S t at es i n Grutter. S i ding with the petitioners, as amicus curiae, t he J ustice
Department noted the impor tance o f d iversity i n education, but refrained from
supporting or opposing Bakke. Instead, t he Administration argued t hat t he
adm i ssi ons pol i ci es are not narrowl y t ai l o red b ecause t h e U n i v e r s i t y i gnores race-
neutral alternat i v e s . S pecifically, t he brief pointed to socioeconomic status and
“percent age pl ans” i n Tex as, Fl ori d a, and C al i forni a t hat guarant ee adm i ssi on t o t o p
graduates from every state h igh s chool, regardless o f race. The University, however,
replied t hat s uch p rograms are counterproductive and would not work in Michigan.
J u stice O’Connor, i n Grutter, general l y agreed, for s e v e r al reasons. Fi rst , i n h er
view , p ercentage plans d epend upon an d would actually perpetuate racial
segregat i o n t o operat e effect i v e l y; i n t h i s sense, t h ey are not race-neut ral at al l .
Second, they would encourage minority students t o s tay i n i nferior s chools rather

than seek better education i n m ore compe titive environments. Third, s he found, such
plans would not work at all i n t he law s chool or at the graduate l e v e l . And, by
basing admission solely on academic standing, t hese plans conflict with the “holistic”
approach endorsed b y t he majority, whi ch individually considers each student.