DeFunis v. Odegaard (1974) was the first affirmative action in higher education case to reach the U.S. Supreme Court. In this case, a law school applicant argued that he was denied admission in favor of minority applicant who was less qualified. Unfortunately, the Court never resolved the merits of the case, because DeFunis was eventually admitted to the law school, thereby rendering the case moot, at least at the federal level. As a result, the first Supreme Court case to address affirmative action in higher education admissions was Regents of the University of California v. Bakke in 1978. In addition to Bakke, four federal appellate court cases have addressed similar issues within the context of higher education. These cases set the stage for the landmark 2003 Gratz v. Bollinger and Grutter v. Bollinger Supreme Court decisions (“the Michigan decisions”) that provided additional guidance on the constitutionality of race-conscious affirmative action programs in higher education.
The Supreme Court’s 1978 decision in Bakke addressed a university’s consideration of race as part of its admissions program. Allan Bakke was a White male who was denied admission by the University of California, Davis, School of Medicine. Bakke alleged that the medical school’s admissions program had violated the Equal Protection Clause by using a quota: The school had reserved 16 out of 100 places for disadvantaged minority students, thus accepting less-qualified minority applicants, according to Bakke. He claimed that the students who filled these 16 spots had lower grade point averages and test scores than White students who were rejected. Bakke alleged that his rights under the Equal Protection Clause of the Fourteenth Amendment (and under Article I of the California Constitution) had been violated, because the medical school’s program treated him differently than the successful minority applicants and excluded him because of his race.
A highly divided Supreme Court held that the medical school’s policy of setting aside 16 seats to be filled only by minorities was unconstitutional, thus establishing the unconstitutionality of using quotas. However, the Court reversed an earlier ruling that race could never be considered a factor in education. After Bakke, universities were left to wonder whether or to what extent race could be used in admissions, because there was a lack of a clear standard of whether race could be considered in admissions. Subsequent to Bakke, federal appellate courts in the Fifth, Eleventh, Ninth, and Sixth Circuits decided affirmative action cases in higher education. The Fifth and Eleventh Circuits did not uphold university affirmative action programs, while the Ninth and Sixth Circuits sustained the constitutionality of such policies.
In the case from the Fifth Circuit, Hopwood v. Texas (1996), four White students challenged their being denied admission to the University of Texas Law School in 1992. Cheryl Hopwood and the other plaintiffs filed suit, claiming that the admissions policy violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The plaintiff’s complaint alleged that the law school had different admissions criteria for White and minority students, resulting in the admission of less-qualified minority applicants. The Fifth Circuit found in favor of the plaintiffs, holding that it was unconstitutional to consider race or ethnicity to achieve a diverse student body at the law school.
The Ninth Circuit was the first federal appellate court to address the issue after Hopwood in Smith v. University of Washington Law School (2000). The court ruled that in this instance diversity was a constitutionally permissible goal. In Smith, White students who were denied admission to the University of Washington Law School filed suit, alleging that law school officials practiced racially discriminatory admissions policies. Disagreeing with the plaintiffs, the court was of the opinion that student body diversity was a compelling state interest and that the university’s admissions plan was constitutional in this instance.
In 2001, the Eleventh Circuit joined the Fifth Circuit in hinting that diversity in academic settings was not a compelling interest in Johnson v. Board of Regents. Here three White female students disputed their being denied admission to the University of Georgia. The plaintiffs claimed that minority applicants were unfairly given extra “points” during the admissions process due to their races. Agreeing with the plaintiffs, the court noted that the university’s affirmative action program was unconstitutional, because it mechanically awarded diversity bonuses to its non-White applicants. The court did not definitively resolve whether diversity was a compelling state interest, instead pointing out that the disputed policy was unconstitutional, because it was insufficiently narrowly tailored.
In addition to the affirmative action cases in the Fifth, Ninth, and Eleventh Circuits, the same issue arose in the Sixth Circuit in Gratz v. Bollinger and Grutter v. Bollinger. Interestingly, the same federal trial court determined that one program was constitutional, while another similar program at the same university was unconstitutional. Subsequently, the Sixth Circuit, interpreting diversity as a compelling state interest, upheld the constitutionality of race-conscious admissions programs as long as the programs were narrowly tailored. When circuits are split on an issue, as the Fifth, Ninth, Eleventh, and Sixth circuits were on affirmative action in higher education admissions programs, the Supreme Court may intervene. In 2003 the Supreme Court addressed whether race could be considered in university admissions.
Gratz v. Bollinger involved undergraduate admissions policies. The plaintiffs, who applied to the College of Literature, Science, and the Arts at the University of Michigan, were wait-listed and later rejected. Gratz had a 3.8 GPA, an ACT score of 25, and an impressive list of high school extracurricular activities. The other plaintiff had equally impressive credentials.
Insofar as the University of Michigan awarded extra points to minority candidates solely on the basis of their races, the plaintiffs filed a class action suit in 1997 against its Board of Regents and various school administrators in a federal trial court, alleging that its admissions program was discriminatory. Specifically, the undergraduate admissions policy at issue awarded a maximum of 150 points to any given application. Race was considered along with several other factors such as test scores, alumni relationships, and leadership skills when determining each applicant’s point total. Members of underrepresented minority groups and applicants from socioeconomically disadvantaged backgrounds received an automatic 20 points under the system. The plaintiffs charged that the university’s consideration of race in admissions from 1995 to 2003 violated Title VI of the Civil Rights Act of 1964 as well as the Equal Protection Clause of the Fourteenth Amendment. Ultimately, the Supreme Court, in 2003, struck down the university’s undergraduate admissions program. Although it was of the view that student body diversity was a compelling state interest, the Court did not think that the undergraduate admissions program was sufficiently narrowly tailored.
Grutter v. Bollinger involved law school admissions at the University of Michigan. The plaintiff had a 3.8 undergraduate GPA and a law school admissions test (LSAT) score in the 86th percentile. Like the plaintiffs in Gratz, she was wait-listed and later denied admission. Grutter and other rejected applicants filed suit in December 1997 challenging the law school’s use of race in its admissions program. In her class action suit, Grutter complained that the law school’s affirmative action policy favored certain minority applicants and that it amounted to racial or ethnic discrimination under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
Unlike the undergraduate program’s use of points, law school officials used race as one of many unquantified factors that could enhance an applicant’s chances of admission. In order to demonstrate a commitment to diversity, law school officials sought to enroll a “critical mass” of minority applicants, or a minimum number of minority students necessary to withstand compartmentalization. The law school, in arguing that diversity is a compelling interest, stressed that the presence of more than a few minority students in a classroom encourages all students to think less stereotypically while allowing the minority students to feel less isolated. In Grutter v. Bollinger, the Supreme Court agreed with the University of Michigan Law School that student body diversity is a compelling interest.
Having held that diversity was a compelling governmental interest, the Supreme Court addressed whether the law school’s program was narrowly tailored. The Court upheld the admissions policy, because it was convinced that unlike the undergraduate admissions program in Gratz v. Bollinger, the law school’s admissions program was sufficiently narrowly tailored. The Court explained that the policy was acceptable, because the law school’s affirmative action program adequately ensured that all factors that may contribute to student body diversity were meaningfully considered alongside race in admissions decisions.
From the Grutter v. Bollinger example, it is evident that universities should make clear that there are many possible bases for diversity in admissions. In Grutter the Supreme Court noted that the law school’s policy required admissions officers to consider “soft variables,” or other criteria beyond grades and test scores. In other words, in order to ensure that polices can pass constitutional muster, university officials should take into account and give substantial weight to a wide variety of diversity factors besides race and ethnicity.
Gratz and Grutter certainly have implications for university admissions teams. Although diversity is now viewed as a compelling state interest, Grutter is not a license for admissions teams to implement any type of race-conscious affirmative action plan they choose. Instead, university officials may use race only when the admissions policy is narrowly tailored. In fact, a careful analysis of the Supreme Court’s rationale in Gratz and Grutter provides guidance for universities that choose to implement a race-conscious admissions program.
The debate over affirmative action continues in the wake of Gratz and Grutter. Most recently, the California Board of Regents voted to eliminate requiring students to submit two SAT subject exams when applying to the University of California System. Now the university will require only that students submit scores from the main SAT or ACT exams, have taken certain college prep courses, and have a 3.0 GPA. Critics of affirmative action claim that this policy was an attempt to avoid the state ban on affirmative action. Indeed, affirmative action policies in higher education admissions will remain controversial.