In case you haven’t heard, the Court handed down the University of Michigan affirmative action cases. They also issued opinions in United States v. American Library Association (constitutionality of mandated software filters on library internet machines), American Insurance Assn v. Garamendi (challenge to California’s Holocaust Victim Insurance Relief Act), and Green Tree Financial Corp. v. Bazzle (legality of class-wide arbitration when arbitration clause silent as to class claims). In this update, I’ll summarize the affirmative action cases, and bring you the rest of the decisions on the installment plan. (Sometimes, the Court’s schedule just doesn’t mesh with my work schedule — or with my preference for sleeping more than just a few hours a night.)
Ok, in a nutshell, the Court upheld Michigan’s law school admissions policy (Grutter v. Bollinger (02-241)), but struck down the undergraduate admissions policy (Gratz v. Bollinger (02-516)). As you may recall, the undergraduate admissions policy ranks applicants on a point system and awards 20 points to every applicant from an underrepresented racial or ethnic minority group. The law school policy, by contrast, does not award points for minority status. Rather, that policy requires consideration of each applicant based on all information in the applicant’s file, including indicators of potential academic success (GPA, LSAT scores), and additional “soft” factors important to the law school’s educational objectives. In this latter category, the law school attempts to create a diverse student body, and thus attempts to achieve a “critical mass” of underrepresented minority students in each class.
Each Justice published an opinion in these cases, for a grand total of more than 150 pages. I’ll summarize mercilessly. O’Connor wrote for the Court (herself, Stevens, Souter, Ginsburg, and Breyer) in Grutter. Under strict scrutiny (the standard of review for racial classifications imposed by the government), a classification is constitutional only if it is narrowly tailored to serve a compelling government interest. The big news out of O’Connor’s opinion is that student body diversity is a compelling state interest that can justify the use of race in university admissions processes. This conclusion arises from deference to the law school’s judgment that diversity is essential to its educational mission, and is bolstered by various amici filings that point to educational and other benefits flowing from student body diversity. After reaching this conclusion, O’Connor continues to hold that the law school’s policy is narrowly tailored to serve that interest. The policy does not establish a quota, but instead identifies race as a “plus” factor in particular applicants’ files. The admissions program is flexible enough to allow consideration of all elements of diversity, and yet does not insulate applicants who belong to certain racial or ethnic groups from competition for admission. At base, each applicant is evaluated as an individual, and not in a way that makes the applicant’s race the defining feature of the application. Finally, O’Connor concludes by opining that race conscious admissions policies must be limited in time. Thus, according to O’Connor “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The separate opinions: (1) Ginsburg (joined by Breyer) concurs to emphasize there is still discrimination in this country, and thus the Court’s 25 year time limit may be nothing more than a hope. (2) Rehnquist (joined by Scalia, Kennedy, and Thomas) dissents. According to Rehnquist, the law school’s policy is not narrowly tailored to the interest in diversity it asserts. Rehnquist views the “critical mass” standard as nothing more than a sham to hide the law school’s effort to achieve a racially balanced class. (3) Kennedy dissents. He believes that the majority opinion does not properly apply the “strict scrutiny” standard. (4) Scalia (joined by Thomas) dissents. (Scalia and Thomas both concur with a few isolated points in the majority opinion – that the Constitution prohibits the use of race in admissions in any other context, and that racial discrimination in higher education will be illegal in 25 years.) Scalia contends that the law school’s alleged interest in diversity to achieve educational benefits (cross-racial understanding, better preparation for diverse workforce) is not unique to the educational context, and thus could justify affirmative action in other non-educational contexts. He then catalogs the numerous legal challenges to affirmative action policies left open by the Court’s decisions. (Note to future plaintiffs: read Scalia’s opinion for potential legal theories.) (5) Thomas (joined by Scalia) dissents. According to Thomas, the Constitution does not allow racial discrimination of any kind, and does not allow, in any event, the wide-ranging deference given to the law school by the majority. He would not find an interest in diversity a compelling interest.
The Gratz decision, authored by Rehnquist and joined by O’Connor, Scalia, Kennedy, and Thomas, begins not with a discussion of affirmative action, but rather with a discussion of Article III standing. I won’t take you through the details (check them out for your next standing case), but will just provide the conclusion: the Court finds that one plaintiff has standing to challenge the undergraduate admissions policy. When Rehnquist turns to the legality of that policy, he begins with the baseline proposition, from Grutter, that diversity is a compelling state interest. The game in this case is thus not the compelling state interest issue, but rather the “narrow tailoring” component of strict scrutiny. And according to Rehnquist, the undergraduate admissions policy is not narrowly tailored to serve the interest of diversity. It does not provide for individualized consideration of each applicant’s entire application, and automatically awards a set number of points for minority status, an award that is virtually always decisive for many minority applicants.
The separate opinions: (1) O’Connor concurs to explain why she votes to uphold the law school policy and yet to strike down the undergraduate policy. Basically, the undergraduate policy does not allow for individualized assessment of each applicant’s file. (Breyer joins this opinion, except for the last sentence in which O’Connor joins the Court’s opinion.) (2) Thomas concurs to emphasize that under the Court’s decisions, a university may not racially discriminate between the minority groups constituting the “critical mass.” (3) Breyer concurs in the Court’s judgment, but does not join its opinion. It seems he would strike down the undergraduate program for the reasons given in O’Connor’s concurrence. (4) Stevens (joined by Souter) dissents. He would find that the petitioners lacked Article III standing because they had already enrolled at other schools before they filed their complaint in this case. (5) Souter (joined in part by Ginsburg) dissents. He elaborates on Stevens’ standing argument, and then would hold that the undergraduate admissions program survives strict scrutiny. He does not believe that the program insulates all nonminority candidates from competition for certain seats. Further, he thinks Michigan’s program (directly stating its goal of diversity) is preferable to programs, such as the “percentage plans,” that are just as race conscious as Michigan’s, but that hide behind allegedly race-neutral criteria. (6) Ginsburg (joined by Souter and Breyer in part) dissents. She notes that the vestiges of discrimination remain in this country. Thus, for equal protection purposes, she would distinguish between policies that burden and benefit certain groups. With this baseline, she would uphold the undergraduate policy.
For those who would like to read the complete decisions, I’ve attached PDF versions of the opinions. (For Grutter v. Bollinger Click Here . For Gratz v. Bollinger Click Here.) Happy reading! The Court will sit again on Thursday to issue decisions. In all likelihood, that will be the last day of October Term 2002.