US Supreme Court Litigation Archives
US Supreme Court Litigation

The Supreme Court took up the issue of affirmative action in June 2003, when the high court decided the twin cases of Grutter v. Bollinger and Gratz v. Bollinger. Both cases involved the University of Michigan at Ann Arbor. The separate cases produced separate results for the undergraduate school and law school, owing to the fact that the schools utilized different criteria in their admissions. Although this was not the first time that the high court had ruled on affirmative action and race-conscious admissions policies, many considered the legality of affirmative action a settled question. However, ten years following those decisions, the Court was confronted with another challenge to affirmative action with Fisher v. University of Texas at Austin [PDF].

Bakke v. Regents of the University of California

The earliest case of affirmative action that the Supreme Court decided concerned admission at the University of California Davis Medical School in 1978. The Supreme Court held in Bakke v. Regents of the University of California that the school’s quota system violated the Equal Protection Clause of the Fourteenth Amendment. The medical school employed a program specifically designed to increase minority enrollment, allocating 16 of the 100 available seats for members of minority groups that a special committee decided had suffered educational or economic harm. The decision was split 5-4, with four justices rejecting the program for violating Title VII of the 1964 Civil Rights Act, which prohibits racial discrimination in programs that receive federal funding. Justice Lewis Powell ultimately controlled the judgment and wrote that all racial classifications — beneficial and detrimental — were suspect and subject to strict scrutiny. Justice Powell’s opinion stated that the state’s legitimate and substantial interest in remedying prior discrimination did not justify the medical school’s quota system because there were no prior findings of such discrimination.

Justice Powell and the majority held that the system was unconstitutional in denying admission, but he also joined the minority in refusing to enjoin the use of race in affirmative action cases in the future. Justice William Brennan and the minority would have upheld the system through an intermediate level of scrutiny. Justice Brennan wrote that the classification could be sustained through “an important and articulate purpose.”

Justice Powell’s opinion was critical because it cast an important influence on future opinions on affirmative action from the high court. Subsequent cases reverberated with his “middle of the road” strategy in not abjuring affirmative action and beneficial race-based classifications outright, but also not allowing affirmative action programs for the sake of correcting broad past discrimination. In Bakke, Justice Powell would have found an affirmative action program salutary if it considered race a “plus” in an applicant’s overall file but did not “insulate the individual from comparison with all other candidates for the available seats.” He considered it important for an affirmative action scheme to be flexible in examining all elements of diversity. Much of his language and thinking on the subject would emerge 25 later in the University of Michigan cases and Justice Sandra Day O’Connor’s opinion in Grutter v. Bollinger.

Grutter v. Bollinger

Grutter v. Bollinger brought the University of Michigan Law School’s affirmative action policy up for the Court’s review. Justice O’Connor’s opinion emphasized the holistic aspect of the law school’s admission scheme. Admissions officials reviewed individual applicants based upon their entire file, including their personal statement, letters of recommendation, undergraduate grade point average (GPA) and Law School Admission Test (LSAT) scores. Admission was not predicated upon those scores, and the policy emphasized the school’s commitment to racial and ethnic diversity in admissions with a special eye to admitting students from groups that had been historically discriminated against. Barbara Grutter brought suit against the lawsuit as a white resident of Michigan, alleging that the school elevated minority candidates above her for admission by relying on race in violation of the Equal Protection Clause. Grutter pointed to her 3.8 GPA and 161 LSAT score as measures of qualification that many admitted minority candidates did not meet.

The opinion explicitly pointed to Justice Powell’s judgment in Bakke as the foundation for universities’ affirmative action programs, and it continued his view that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” As a result, the Court upheld the law school’s admissions policy through a strict scrutiny test. Support for diversity as a compelling state interest was support by amici curiae from the military [PDF] and US businesses [PDF] making the case for diverse leaders in their ranks. The majority considered the policy to be narrowly tailored because the policy followed Justice Powell’s conception of a permissible approach that considered race or ethnicity a “plus” factor among many other factors used to assemble a broad and diverse student body. The opinion ended with the Fourteenth Amendment’s goal of eliminating governmentally imposed racial discrimination, so it concluded that race-conscious admissions policies had to be temporally limited. Without any justification other than the fact that 25 years had elapsed since Bakke, the majority decided that racial preferences in admissions would not be necessary 25 years in the future.

Gratz v. Bollinger

The University of Michigan twin of Grutter v. Bollinger was Gratz v. Bollinger, which implicated the admissions policy of the undergraduate college of liberal arts and sciences, distinct from that of the law school. Admissions scored applicants on a 150-point system; applicants who scored at least 100 points were typically admitted and those who scored below 75 were either waitlisted or rejected. Overall, 110 points were available on academic factors and 40 points could be attributed for nonacademic reasons. This policy was controversial for assigning a “bonus” of 20 points to applicants who belonged to an underrepresented minority group or attended a predominantly minority or disadvantaged high school.

Chief Justice William Rehnquist, a dissenter in Grutter, delivered the opinion in Gratz striking down the school’s policy. Like Justice O’Connor in Grutter, his opinion carried forward Justice Powell’s philosophy from Bakke. He emphasized that Justice Powell focused on the importance of considering applicants as individuals with a wide array of qualities and ability to contribute to the institution’s setting. According to Chief Justice Rehnquist, that kind of consideration was absent from the undergraduate school’s admissions process because it automatically assigned 20 points to all applicants of an underrepresented minority group, shorn of any other consideration. Even though there was a component of individual consideration involved, it was not featured enough to counter the 20-point assignment and withstand strict scrutiny.

Justice O’Connor concurred with Justice Rehnquist’s opinion, noting that diversity was not individually assessed and the point system was perverse for assigning excessive weight to membership in an underrepresented minority group but assigning only five points for outstanding academic achievements. Justice David Souter’s dissent distinguished the case from Bakke, with the difference being that seats in Bakke were reserved from members of certain groups.

Parents Involved in Community Schools v. Seattle School Dist. No. 1

This June 2007 decision involved student assignment plans for school districts in Seattle, Washington, and Louisville, Kentucky. Both plans used racial bases to apportion students to give schools a more diverse racial composition than they would otherwise have. While not an affirmative action case, the decision served to undercut the rationale of permitting affirmative action policies in higher education. The plurality opinion ruled that a state does not have authority under the Equal Protection Clause to use race as a factor for educational opportunities. Using the rationale from Brown v. Board of Education, it found differential treatment unconstitutional on the basis of color. Justice Anthony Kennedy concurred, but he did not join the majority because he refused to eliminate race from consideration in an educational setting. He found that the government still had a compelling interest in avoiding racial isolation in education.

Fisher v. University of Texas at Austin

Only ten years after Justice O’Connor predicted that affirmative action programs would be necessary for another 25 years, the Supreme Court is deciding the future of higher education affirmative action in the case of Fisher. Notably, Justice O’Connor has resigned from the bench in the interim. Much like the plaintiffs from the 2003 Michigan cases, Abigail Noel Fisher alleged that she was wrongfully denied admission because minority students with lower GPAs and standardized test scores were admitted instead of her. The state university employs a colorblind “Top Ten Percent Plan,” in which students who rank in the top ten percent of their graduating high school class are automatically accepted into the university. Although most matriculated students are admitted through that policy, the issue in the case is the “holistic file review” system that admits a minority of students. That holistic view can include such factors as socioeconomic status and race. It is known as the Harvard Plan, and it is based on Justice Powell’s Bakke opinion.

The Supreme Court heard oral arguments on October 10, 2012, and issued a decision remanding the case for reconsideration based on the strictest possible judicial standard on June 24, 2013. Fisher’s attorney did not advocate overturning Grutter, but instead argued that admissions officers should be given less discretion in admitting students with regard to race. The university’s policy is notable for trying to achieve a “critical mass” of students, but as JURIST Guest Columnist Ilya Shaprio points out in Hotline, the critical mass concept does not satisfy a state interest in achieving diverse composition of the student body:

Finally, even if UT-Austin could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, the school justifies preferences for Hispanics by pointing to the need for a “critical mass” of such students — even as it denies preferences to Asians, who comprise a smaller portion of the student body.

Although many expected the Court to articulate a new legal standard for evaluating affirmative action plans, its decision in Fisher only reinforces previously articulated standards.