GRUTTER v. BOLLINGER
this case the Court considers the constitutionality of an affirmative action
program designed to enhance the diversity of the student body at the
Justice O’Connor delivered the opinion of the Court.
… The [
The policy aspires to “achieve that diversity which
has the potential to enrich everyone’s education and thus make a law school
class stronger than the sum of its parts.” The policy does not restrict the
types of diversity contributions eligible for “substantial weight” in the
admissions process, but instead recognizes “many possible bases for diversity
admissions.” The policy does, however, reaffirm the
The policy does not define diversity “solely in terms of racial and ethnic status.” Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.” ...
Petitioner Barbara Grutter is a white
Petitioner further alleged that her application was
rejected because the
During the 15-day bench trial, the parties introduced
extensive evidence concerning the
[T]he District Court concluded that the
Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction. ...
We granted certiorari to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. ...
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority of the Court. ... The only holding for the Court in Bakke was that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” ...
Since this Court’s splintered decision in Bakke, Justice Powell’s opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell’s views on permissible race-conscious policies. ...
We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” We apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.”...
Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context. ...
With these principles in mind, we turn to the question
We first wish to dispel the notion that the
We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” From this premise, Justice Powell reasoned that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ “ a university “seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.” Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.”
As part of its goal of “assembling a class that is
both exceptionally academically qualified and broadly diverse,” the
These benefits are substantial. As the District Court
[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. ...
In order to cultivate a set of leaders with legitimacy
in the eyes of the citizenry, it is necessary that the path to leadership be
visibly open to talented and qualified individuals of every race and ethnicity.
All members of our heterogeneous society must have confidence in the openness
and integrity of the educational institutions that provide this training. As we
have recognized, law schools “cannot be effective in isolation from the
individuals and institutions with which the law interacts.” Access to legal
education (and thus the legal profession) must be inclusive of talented and
qualified individuals of every race and ethnicity, so that all members of our
heterogeneous society may participate in the educational institutions that
provide the training and education necessary to succeed in
Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” ...
To be narrowly tailored, a race-conscious admissions program cannot use a quota system--it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Instead, a university may consider race or ethnicity only as a “ ‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”
We find that the
We are satisfied that the
That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.
We also find that...the
What is more, the
Petitioner and the
We acknowledge that “there are serious problems of justice connected with the idea of preference itself.” Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” To be narrowly tailored, a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.”
We are satisfied that the
We are mindful, however, that “[a] core purpose of the
Fourteenth Amendment was to do away with all governmentally imposed
discrimination based on race.” Accordingly, race-conscious admissions policies
must be limited in time. This requirement reflects that racial classifications,
however compelling their goals, are potentially so dangerous that they may be
employed no more broadly than the interest demands. Enshrining a permanent
justification for racial preferences would offend this fundamental equal
protection principle. We see no reason to exempt race-conscious admissions
programs from the requirement that all governmental use of race must have a
logical end point. The
In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. ...
The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.”
We take the
Justice Ginsburg, with whom Justice Breyer joins, concurring.
...The Court...observes that “[i]t has been 25 years since Justice Powell [in Bakke] first approved the use of race to further an interest in student body diversity in the context of public higher education.” For at least part of that time, however, the law could not fairly be described as “settled,” and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. ...
However strong the public’s desire for improved education systems may be, it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country’s finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.
Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part.
...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 Grutter-Gratz 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,” and sufficiently avoids “separate admissions tracks,” 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.” Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. 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. ... 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. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.
Justice Thomas, with whom Justice Scalia joins, concurring in part and dissenting in part.
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:
… [I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us.... I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ... And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury.
Like Douglass, I believe blacks can achieve in every
avenue of American life without the meddling of university administrators.
Because I wish to see all students succeed whatever their color, I share, in
some respect, the sympathies of those who sponsor the type of discrimination
advanced by the University of Michigan Law School (
The majority upholds the
The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” ...
Justice Powell’s opinion in Bakke and the Court’s decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualized so that a goal, such as classroom aesthetics, can be compelling in one context but not in another. This “we know it when we see it” approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority’s failure to justify its decision by reference to any principle arises from the absence of any such principle. ...
The interest in remaining elite and exclusive that the
majority thinks so obviously critical requires the use of admissions
“standards” that, in turn, create the Law School’s “need” to discriminate on
the basis of race. The Court validates these admissions standards by concluding
that alternatives that would require “a dramatic sacrifice of ... the academic
quality of all admitted students” need not be considered before racial
discrimination can be employed. In the majority’s view, such methods are not
required by the “narrow tailoring” prong of strict scrutiny because that
inquiry demands, in this context, that any race-neutral alternative work “about
as well.” The majority errs, however, because race-neutral alternatives must
only be “workable” and do “about as well” in vindicating the compelling state
interest. The Court never explicitly holds that the
Finally, the Court’s disturbing reference to the importance of the country’s law schools as training grounds meant to cultivate “a set of leaders with legitimacy in the eyes of the citizenry,” through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly rejected the remedying of societal discrimination as a justification for governmental use of race. For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country’s leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then “fixing” it is even less of a pressing public necessity.
The Court’s civics lesson presents yet another example
of judicial selection of a theory of political representation based on skin
color--an endeavor I have previously rejected. The majority appears to believe
that broader utopian goals justify the
As the foregoing makes clear, I believe the Court’s opinion to be, in most respects, erroneous. ...
Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting.
I agree with the Court that, “in the limited circumstance when drawing racial distinctions is permissible,” the government must ensure that its means are narrowly tailored to achieve a compelling state interest. I do not believe, however, that the University of Michigan Law School’s means are narrowly tailored to the interest it asserts. ...
Respondents have never offered any race-specific arguments
explaining why significantly more individuals from one underrepresented
minority group are needed in order to achieve “critical mass” or further
student body diversity. They certainly have not explained why Hispanics, who
they have said are among “the groups most isolated by racial barriers in our
country,” should have their admission capped out in this manner. True,
petitioner is neither Hispanic nor Native American. But the
Finally, I believe that the
Justice Kennedy, dissenting.
The separate opinion by Justice Powell in Bakke is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. ...If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents. ...
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.