Grutter v. Bollinger (2003) is a landmark judgment of the U.S. Supreme Court that together with its companion case, Gratz v. Bollinger, clarifies the circumstances under which college and university officials may consider race in admissions actions. More specifically, the Court in Grutter held that obtaining the educational benefits of a diverse student body is a compelling governmental interest for equal protection purposes and that the admissions policy of the University of Michigan Law School was narrowly tailored to meet this goal and thus was constitutional. In light of the controversy that Grutter engendered, this entry examines the background of this decision, the Supreme Court’s rationale in Grutter, and its ramifications for admissions in higher education.
Facts of the Case
Grutter arose out of a challenge to the admissions policy at the University of Michigan. Law school officials sought to obtain the educational benefits of a diverse student body by considering race as one factor among many. Grutter was filed by an unsuccessful 43-year-old White female applicant who was in the 86th percentile nationally on the Law School Admissions Test. The applicant challenged the law school’s use of race as a factor in admissions. During the litigation, university officials conceded that the plaintiff probably would have been admitted had she been a member of one of the underrepresented minority groups, which the policy defined as African Americans, Hispanics, and Native Americans.
The Supreme Court’s Ruling
Ultimately, the Supreme Court, in a five-to-four judgment authored by Justice O’Connor, upheld the law school’s policy. The Court was convinced that the policy was constitutional because it was narrowly tailored to achieve the law school’s goal of a diverse student body.
Compelling Governmental Interest
The Supreme Court has established repeatedly and with great clarity that classifications based on racial and ethnic distinctions are inherently suspect and are subject to the most exacting judicial examination of strict scrutiny under Fourteenth Amendment equal protection analysis. Moreover, the Court noted that the government, and by extension, officials at public colleges and universities, bear the burden of proving that racial classifications are narrowly tailored measures that further compelling governmental interests. The fact that racial classifications may be used to help racial minorities has not changed the Court’s analysis. If anything, the Court has insisted on strict scrutiny in every context, even for so-called “benign” racial classifications such as race-conscious university admissions policies.
In Grutter, the Supreme Court recognized that context matters in the review of race-based governmental policies, because not all actions are equally objectionable; strict scrutiny is designed to provide a framework for carefully examining the importance of the reasons advanced by governmental decision makers for their use. The Grutter Court did not hold that obtaining racial diversity by correcting the underrepresentation of specified racial groups was a compelling governmental interest. In fact, university officials had never argued that it was. Rather, the university’s lawyers emphasized that enrolling specified racial groups was only part of a goal of assembling a class of students that was both exceptionally academically qualified and broadly diverse.
The Supreme Court, then, found that public institutions of higher education have a compelling interest in obtaining the educational benefits that flow from diverse student bodies. In so ruling, the Court explained that it was embracing the concept of diversity articulated 25 years earlier by Justice Powell in Regents of the University of California v. Bakke (1978). Yet because no other justice joined the diversity portion of Justice Powell’s opinion in Bakke, lower courts were divided on whether it constituted binding precedent. However, in Grutter, the majority expressly endorsed Justice Powell’s view that diversity is not an “aesthetic” quality to be judged by the mosaic of skin tones composing a student body. Instead, for Powell, diversity arises from students who can contribute the most to the robust exchange of ideas on their campuses. In this way, Powell was emphatic that programs focusing solely on ethnic diversity would hinder rather than further the attainment of genuine diversity.
The difference between obtaining the educational benefits of diversity and correcting the underrepresentation of specified racial groups is demonstrated by comparing the approach that officials took in the University of Michigan Law School with the one followed by the undergraduate school, where students with the highest point totals were admitted, and points were awarded to applicants simply for being members of particular races. Relying on Bakke, the Supreme Court pointed out that preferring members of any one group for no reason other than race or ethnic origin was impermissible, because it was discriminatory.
While the Supreme Court did not specify how much emphasis could be given to race or ethnicity, it is clear that race and ethnic origin may not be the sole diversity factors that officials use. If such factors are considered, the Court explained that they may be no more than part of a broad array of qualifications and characteristics. Given this language, admissions programs are likely to be invalid if, when they are considered as a whole, race and ethnicity predominate over other diversity factors. Similarly, the Court indicated that the compelling interest it approved did not mean that student bodies must include specified percentages of particular groups merely because of their races or ethnic origins, because such an approach would amount to racial balancing, a patently unconstitutional practice.
Turning to the issue of narrow tailoring in higher education admissions, the Supreme Court stated in Grutter that such programs must provide for individualized consideration, may be undertaken only after officials engage in serious good faith considerations of the viability of nonracial alternatives, must not unduly burden nonminorities, must be periodically reviewed, and must be of limited duration.
Individualized Consideration of Each Applicant
The Supreme Court began its four-part analysis by declaring that if institutional officials wish to utilize race in admissions decisions to foster diversity, they must provide for truly individualized consideration by reviewing all pertinent elements of diversity in light of the qualifications of each applicant. Officials must take such an approach in order to place all applicants on the same footing for consideration even if they do necessarily treat each criterion as having the same weight. Essentially, the Court specified that individualized consideration involves two elements—that no applicant is isolated from competition and that the person’s race is not the defining feature of an application.
If race-conscious programs are to pass the narrow tailoring test, institutional officials may not insulate applicants who belong to specified racial or ethnic groups from the competition for admission, may not establish quotas for members of certain racial groups, and may not have separate admissions tracks for different races. However, the Supreme Court recognized a legally significant difference between the use of quotas and the goal of attaining critical masses of underrepresented students. While the former is prohibited, the latter is allowed. Although the dissent took issue with this distinction, the majority expounded on its understanding of this difference. According to the Court, quotas impose a fixed number or percentage that must be attained and insulates individuals from comparisons with all other candidates. Conversely, the Court thought that permissible goals require only good faith efforts to achieve a range demarcated by the goals themselves, while permitting the consideration of race as a “plus” factor with regard to particular candidates while ensuring that individuals compete with all other qualified applicants.
The Supreme Court further observed that raceconscious admissions programs that operate as quotas do not, by themselves, meet the requirement of individualized consideration. Rather, the Court asserted that institutional officials must demonstrate that race is not the decisive or defining feature of applications. In order to satisfy this requirement, officials must demonstrate not only that applicants had the opportunity to highlight their contributions to a diverse educational environment but also that their applications were read individually as part of a highly individualized, holistic review of their files.
In evaluating the contributions that individuals can make to diversity, the Supreme Court indicated that officials must not assume that a single characteristic would automatically guarantee a specific and identifiable contribution to diversity. To this end, the Court rejected the notion of an automatic acceptance or rejection based on any single “soft” variable such as the enthusiasm of recommenders, the quality of the undergraduate institutions that applicants attended, their essays, and the areas and difficulty of their undergraduate course selection. Instead, the Court directed officials to consider how and whether applicants will contribute to diversity based on their own unique characteristics. Moreover, if institutional officials consider race in order to obtain the educational benefits of diverse student bodies, the Court expects decision makers to give substantial weight to diversity factors other than race.
Consideration of Race-Neutral Alternatives
Second, in order to show that the use of race is narrowly tailored, the Supreme Court maintained that university officials must be able to demonstrate that they employed serious, good faith considerations of workable race-neutral alternatives to achieve diversity. At this point the Court assumed without deciding that “percentage plans,” which ensure admission to all students above specified class-rank thresholds, are race-neutral even though such policies could be subject to legal challenges if they were adopted for a racially discriminatory purposes. In applying these standards to the law school, the Court discussed three specific raceneutral alternatives suggested during the litigation: lottery systems, decreasing the emphasis for applicants on undergraduate GPA and LSAT scores, and employing percentage plans such as those adopted by public institutions in Texas, California, and Florida. Still, the Court accepted the law school’s assertion that none of these options was an adequate alternative to race-conscious measures.
No Undue Burden
Third, the Supreme Court acknowledged that because racial preferences pose serious problems of justice, race-conscious admissions programs must not unduly burden individuals who are not members of the favored racial and ethnic groups. The Court held that the admissions policy met this standard, because officials chose nonminority applicants with greater potential to enhance student body diversity over underrepresented minority applicants.
Fourth, the Supreme Court wrote that raceconscious admissions policies must be of a limited time duration, because all governmental uses of race must have logical end points. The Court suggested that officials can meet this requirement by developing sunset provisions in race-conscious admissions programs and periodic reviews to evaluate whether racial preferences are still necessary to achieve student body diversity. The Court concluded that it expected that racial preferences would no longer be necessary in 25 years but did not offer a justification as to how it developed this time line.
Three different dissenting opinions, by Justices Scalia and Thomas and Chief Justice Rehnquist, raised a variety of concerns with the Supreme Court’s rationale. Among the questions that the dissents raised were judicial deference to academic decision making as reflected in the concept of academic abstention and calculating when a critical mass of minority students is sufficient.
William E. Thro
See also affirmative action; U.S. Supreme Court Cases in Higher Education
Jenkins, J. K. (2004). Grutter, diversity, & K–12 public schools. Education Law Reporter, 182, 353–370.
Mawdsley, R. D., & Russo, C. J. (2003). Supreme Court dissenting opinions in Grutter: Has the majority created a nation divided against itself? Education Law Reporter, 180, 417–435.
Meers, E. B., & Thro, W. E. (2004). Race conscious admissions & financial aid after the University of Michigan decisions. Washington, DC: National Association of College and University Attorneys.
Thro, W. E. (2005). No direct consideration of race: The lessons of the University of Michigan decisions. Education Law Reporter, 196, 755–764.
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).