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Grutter v. Bollinger

Written opinions by Justices O’Connor, Ginsburg, Scalia,Thomas, Rehnquist, and Kennedy
docket no. 02-241, decided June 23, 2003; vote: 5–4 for Bollinger.

Gratz v. Bollinger

Written opinions by Justices Rehnquist, O’Connor, Thomas, Breyer, Stevens, Souter, and Ginsburg
docket no. 02-516, decided June 23, 2003; vote: 6–3 for Gratz

Table A

Table B

Table C


Thanks to Sandra Day O’Connor, affirmative action is still alive. Race can continue to be a factor in university admissions, although not as explicitly as it sometimes was in the past. But resistance to affirmative action remains strong, particularly within the Bush administration. The Court’s recent decision will very likely face serious challenges, some of them hardly mentioned in comments on the decision so far.

By now the principal findings of the Court are well known. In the decision concerning the University of Michigan Law School, Grutter v. Bollinger, race can be a “plus” in law school admissions, so long as every candidate receives “individualized” scrutiny. In Gratz v. Bollinger, Michigan’s method for admitting undergraduates was held to be unlawful since it automatically gave extra points to persons of certain racial or ethnic origins. The books under review are useful for understanding the challenges to the Court’s decision that are bound to arise.

Affirmative action largely concerns race. Michigan and other universities call Hispanics and American Indians “underrepresented minorities,” but the primary aim of preferential policies has been to increase the number of black students on campuses. In 1994, a white applicant to the University of Texas School of Law named Cheryl Hopwood filed a suit contending that she had been rejected by the law school because of her race. She found that black candidates with lower grades and scores than hers had been given places, one of which, she felt, should have been hers. The school replied that it had the right to encourage diversity among its students.

Two years later, however, a federal appeals court upheld Hopwood’s suit, saying that the school “may not use race as a factor in deciding which applicants to admit in order to achieve a diverse student body.” It based its decision chiefly on a new reading of both the Fourteenth Amendment’s “equal protection” clause and the Civil Rights Act of 1964, where the operative words are “no person shall, on the ground of race, color, or national origin, be subjected to discrimination under any activity receiving Federal financial assistance.”

The original aim of both the Fourteenth Amendment and the Civil Rights Act was to protect black Americans, who were being denied opportunities and benefits because of their race. Even so, the appeals court ruled that the law school had abrogated Cheryl Hopwood’s right to “equal protection” since she was discriminated against for being white. Under no circumstances, the court held, could race, white or black, be used to further academic ends. Lawyers for the white plaintiffs in both recently decided Michigan cases made this their leading argument. In the Grutter case, they persuaded only four of the Supreme Court justices, and as a result Hopwood was overturned. The decision had barely been released when the University of Texas announced it would reinstate the affirmative action programs it has been barred from using for the past seven years.

In 1996, California also set a precedent that will now be getting more attention. In a referendum, white voters were largely responsible for passing Proposition 209, now part of the state’s constitution, by which race cannot be considered in any activities of the state, including its universities’ admissions and faculty appointments. Two years later, the state of Washington’s voters passed a similar amendment. These actions mean that public colleges and universities in both states do not have the leeway to use affirmative action as was granted in the Michigan law school decision, which permits race to be considered in admissions only if a university wishes to employ it. But California and Washington’s voters have already said they do not want it used in schools that their taxes support.1 If those relatively liberal states could take such a step, it seems likely that at least a few others will now be inclined to do the same.

So the battle is far from over. Indeed, two weeks after Grutter was decided, plans were announced for a Michigan referendum that would negate the Court’s ruling for the state. The same day, Colorado’s governor called for state legislation having that effect. It will, moreover, take only one new Supreme Court justice to overturn or modify the Michigan law school decision. Conservative lawyers can be counted on to file suits against admissions offices they feel are ignoring the Court’s ruling against Michigan’s use of affirmative action for undergraduates. Thus Michigan could be called on to prove it gives “holistic” attention, as Justice O’Connor put it, to each one of its 24,141 undergraduate applicants,2 which it may have a hard time doing. In these and other respects, Peter Schuck’s Diversity in America suggests what form the debate may take.

While Schuck also discusses immigration, residential segregation, and religion, affirmative action is at the core of his book. He has written what is basically a lawyer’s brief opposing race-based programs. Indeed, Anthony Kennedy’s dissent in the Michigan law school case cited Schuck’s earlier work. Schuck, a professor at Yale Law School, writes that he has no quarrel when a state supports interests and identities that have “already been defined, authenticated, and valorized by civil society.” But he deplores what he sees as a “socially inflammatory” emphasis on race, which he regards as “the worst imaginable category around which to organize group competition and social relations more generally.” Even if “race” in common usage refers to a social reality, Schuck worries that a “relentlessly racialist rhetoric” has given it excessive emphasis.

Thus he underlines that those who want to make campuses more varied “almost always mean ethno-racial diversity.” Selective schools, he says, have done little to attract students who are politically conservative or devoutly religious, and here he is on strong ground. (How many have enough undergraduates to form a “right to life” chapter, for example?) However, he then asserts that adding black students need not augment intellectual diversity, since some may have views and social advantages resembling those of white students. But here Schuck treats African origin simply as a census category rather than as an imposed condition that affects a person’s life. As Ronald Dworkin has pointed out in these pages, “The experience of a black person in American society is special, and cannot be duplicated by the experience of a white person of similar economic or social background.”3 Hearing oral arguments in a cross-burning case last year, Clarence Thomas suddenly made a comment about racial prejudice resembling Dworkin’s. But his animus toward affirmative action demonstrates that racial perspectives are by no means uniform.

Schuck’s argument is one commonly made on behalf of plaintiffs like Hopwood, Gratz, and Grutter, who claim that they were penalized because of preferences based on race. At issue, he says, are “people’s claims to be judged as individuals, not as members of ascribed groups.” Insofar as being black becomes an asset for admissions or employment, being white is turned into a liability. (Indeed, Barbara Grutter described herself as belonging to a “disfavored racial group.”) Implicit in Schuck’s book is a new constitutional concept, one that could be called “white rights.”

In the two Michigan cases, as with others at lower levels, the plaintiffs were marginal applicants, at or near the bottom of the “white” lists of candidates. (Needless to say, colleges will deny that racial rankings exist.) This may be one reason why the Bush administration filed briefs on their behalf in the Michigan cases, and why attacking affirmative action has become a strong conservative cause. White voters are Bush’s core constituency. In 2000 Bush received a majority of white votes, some 54 percent. Since the party’s greatest loyalty is to the better-off, the Republicans face the question of what to do for the less affluent, who are less likely to attend schools with strong college preparatory programs. This usually means that they end up with lower test scores. If they are rejected by a state university, they can be encouraged to believe that someone black was given “their” place. In fact, when whites are displaced, it is largely by Asians whose admission cannot be criticized because they tend to have better scores and grades. It is all too easy to transfer resentment onto blacks.

The Court’s rulings in the Michigan cases apply only to public institutions, which make up about 40 percent of all colleges, but account for more than three quarters of all enrollments. For all of Schuck’s objections to race-based preferences, he allows that private universities “should be able, as a legal and policy matter, to make many choices that the government may not properly make.”4 Here his argument seems unconvincing. Such universities as Stanford, Duke, and MIT are national institutions, with substantial influence on American society, and they are heavily dependent on public funds. Why shouldn’t they be subject to the Civil Rights Act?

Public universities, moreover, now collect as much from student tuition as they get in legislative grants. Schuck, for his part, doesn’t seem bothered by the fact that public law schools that cannot use affirmative action have one third to half as many black students as others that can. (See Table A) Nor does he say how he feels about the student body of Yale Law School, his employer, having an ongoing average of 9.3 percent blacks. It would have been interesting to hear his assessment of their academic performance, and his views on how their presence has affected the school’s atmosphere. Does he feel that some of them should have heeded his advice to black students generally, which is to drop “down a rung on the academic ladder” and not compete for places in the more selective universities?

It should be self-evident that people shouldn’t suffer discrimination because of their “race, color, or national origin” (Title VI’s categories) since these are conditions imposed on them at birth.5 Schuck feels strongly that to benefit from these circumstances is equally undeserved. In this, he echoes Clarence Thomas, who held in his dissent that such preferment “presumes that one needs special help because one cannot make it on one’s own.” My own suggestion is to add another birth condition to the list—call it “parentage”—to denote the benefits you get from being identified with and raised by your parents. Some of the opinions in Gratz v. Bollinger mentioned white candidates in Michigan who received extra points for being children of alumni, for having lived abroad, or for being from an “underrepresented” Michigan county.

Schuck has nothing to say about these kinds of advantages. Nor does he conclude that getting admitted thanks to parental influence or prestige will impose a “stigma” (Thomas’s term) on such students in the eyes of their classmates. (We don’t hear that George W. Bush slouched in shame around Yale’s quadrangles. In my own case I suspect I got into Amherst mainly because my father was a professor, and colleges like a leavening of faculty offspring.) The truth is that students seldom know who exactly benefited from one preference or another; and the specter of their being humiliated or snubbed because they benefited from affirmative action seems largely fantasy. In any case, giving extra points for belonging to a racial caste may be seen as offsetting the advantages of those who have parents able to ease their way in.

  1. 1

    I am grateful to my Queens College colleague Burton Zwiebach for noting that mandatory state actions trump judicial rulings that only permit policies but do not require them. Thus we may once again see “states’ rights” used to favor white residents.

  2. 2

    Wesleyan University needs a staff of twenty-two to give its applicants individual attention and decide on 1,796 acceptances. See Jacques Steinberg, Gatekeepers: Inside the Admissions Process of a Premier College (Viking Penguin, 2002).

  3. 3

    Ronald Dworkin, “The Court and the University,” The New York Review, May 15, 2003.

  4. 4

    To my knowledge, there are no longer any private colleges that admit only whites. Even Bob Jones University now has twenty-eight black students in its 3,531 enrollment. Brigham Young University, which has eighty-nine black students out of 29,815, accepts non-Mormons, but charges them 50 percent more in tuition. On the public side, neither Schuck nor the dissenting justices in Grutter cited the service academies’ use of affirmative action as being unlawful.

  5. 5

    As Amy Gutmann puts it, when a society chooses to ascribe a race to some of its members, those called black may strive to “reinterpret their ascriptive identities, but it is difficult if not impossible to give them up.” See Identity in Democracy (Princeton University Press, 2003), p. 120.

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