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Grutter v. Bollinger (2003) was an attempt by the U.S. Supreme Court to define the acceptable boundaries of university affirmative action programs. While setting limits on the design of such programs, Grutter, along with Gratz v. Bollinger (decided the same day), upheld the practice generally and answered some existing questions about allowable techniques.
Prior to these cases, affirmative action law followed California v. Bakke (1978). Bakke, however, confused college admissions officers because six separate opinions were produced, none of which garnered a majority of the Court’s nine votes. Many legal commentators supported Justice Lewis F. Powell’s (1907–1998) opinion as the precedent around which programs should be formed. His opinion upheld diversity in educational institutions—but not correction of past harms—as an acceptable public goal, while limiting the options available to achieve diversity. In particular, Bakke has been interpreted to mean that racial quotas are unconstitutional. However, due to the overlapping opinions, universities and federal circuit courts were unclear about which practices remained acceptable. Some states, therefore, were forced to abandon affirmative action completely, while others encountered a more permissive environment.
Arising in this context, Grutter and Gratz involved the University of Michigan Law School and undergraduate admissions offices, respectively. Grutter left the Law School admissions practice intact, while Gratz found the undergraduate process flawed. Together, the cases upheld affirmative action, while imposing limits on its implementation.
Constitutional jurisprudence has applied “strict scrutiny” analysis for state-sponsored activities that treat “suspect classes” (i.e., groups who tend to experience discrimination) differently. Strict scrutiny first requires that the policy in question be used to forward some compelling state interest. Grutter affirmed diversity as a worthwhile goal of state-funded educational institutions. Second, to survive strict scrutiny, a policy must be narrowly tailored to meet that interest. Quota systems, therefore, remained unconstitutional, and universities were required to make a good-faith effort towards race-neutral policies to further their goals. At Michigan Law School, “plus factors” granted to underrepresented minorities were deemed sufficiently narrow to avoid racial discrimination. This format was accepted as a means of making admissions decisions about individuals rather than seeing them merely as representatives of their racial group. The undergraduate admissions program was invalidated because of the weighting it gave simply for group membership. Justice Sandra Day O’Connor also expressed hope “that 25 years from now, the use of racial preferences will no longer be necessary to further” the interest of diversity.
Future jurisprudence, particularly in light of Justice O’Connor’s retirement in 2006, may revisit the issue and alter the Grutter approach. For the time being, in response to Grutter, some state universities have resurrected affirmative action programs that were locally banned after Bakke. In order to comply with Grutter and Gratz, others have dropped point-based systems in favor of more individualized application review. Michigan, for instance, has moved to a system based on essays about the applicant’s diverse experiences. Although such changes are popular, they require additional admissions staff and financial resources.
Some legal confusion persists, leading risk-averse universities to question whether other diversity efforts, such as minority scholarships, may be at risk. In addition to compliance efforts, Grutter has had other political consequences. Most notably, opponents have introduced ballot initiatives to block affirmative action programs. Nonetheless, Grutter affirmed the constitutionality of racial preferences in university admissions, significantly reducing previous uncertainty.
- S. Supreme Court. 1978. Regents of the University of California v. Bakke, 438 U.S. 265. http://supreme.justia.com/us/438/265/case.html.
- S. Supreme Court. 2003. Gratz v. Bollinger, 539 U.S. 244. http://www.supremecourtus.gov/opinions/02pdf/02-516.pdf.
- S. Supreme Court. 2003. Grutter v. Bollinger, 539 U.S. 306. http://www.supremecourtus.gov/opinions/02pdf/02-241.pdf.
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