Gratz et al v. Bollinger

U.S. Supreme Court Rules on University Affirmative Action Policies

Judicial decision

By: William H. Rehnquist

Date: June 23, 2003

Source: Gratz et al v. Bollinger, 539 U.S. 244 (2003).

About the Author: William H. Rehnquist (1924–2005) was appointed to the U.S. Supreme Court as an associate justice in 1972. Rehnquist was subsequently appointed Chief Justice of the Court in 1986, serving in that capacity until his death in 2005. The Supreme Court of the United States is the nation's highest court, a body composed of eight associate justices and one chief justice.

INTRODUCTION

The decision of the U.S. Supreme Court in Gratz represents an aspect of the evolving debate about racial issues in American education. Beginning with the landmark decision of Brown v. Board of Education in 1954, in which the Supreme Court ruled that "separate but equal" educational systems for black and white students was a violation of the equality provisions of the U.S. Constitution, race has been a recurring theme in American education.

In the wake of the Brown decision, where the issue determined by the Supreme Court was the integration of a public high school, universities contended with racial integration throughout the late 1950s and early 1960s, particularly in institutions located in the southern states. A prominent example was the University of Mississippi, where riots were precipitated by efforts to integrate its undergraduate programs in 1962.

Once the principle of the integration of black and white students was relatively settled in American universities, many institutions moved to implement programs that encouraged a greater population of black students. These measures, generally categorized as affirmative action, sought to increase the enrollment of black and other visible minority students by creating admission procedures that tended to create a favorable environment for the black applicants. The most common of these affirmative action measures was to specify that black applicants would be rated differently in the admissions process than white applicants.

Affirmative action programs were intended to address the underrepresentation of the black population at large in university programs. Critics of affirmative action initiatives pointed to the fact that such measures tended to discriminate against otherwise qualified applicants who were white.

The first significant legal test of affirmative action in university admissions took place in 1978, when the Supreme Court, in the case of Regents of the University of California v. Bakke, endorsed affirmative action in university admissions in certain circumstances; the Court ruled that the race of an applicant could be a valid admissions consideration, so long as the race of a particular candidate was part of a wide variety of admission criteria, including grades, personal background, and other factors.

The Gratz case arose as a challenge to the undergraduate admissions procedures at the University of Michigan in the 1990s. The white applicants, Jennifer Gratz and Patrick Hamacher, were qualified students applying to the College of Literature, Science, and the Arts (LSA) in 1995 and 1997, respectively. At that time, the university had a points system whereby a black, Hispanic, or Native American applicant automatically received additional points, improving their chances for admission. Gratz and Hamacher were denied admission, while, they contended, less academically qualified persons of color were admitted to the university.

PRIMARY SOURCE

Petitioners filed this class action alleging that the University's use of racial preferences in undergraduate admissions violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. §1981. They sought compensatory and punitive damages for past violations, declaratory relief finding that respondents violated their rights to nondiscriminatory treatment, an injunction prohibiting respondents from continuing to discriminate on the basis of race, and an order requiring the LSA to offer Hamacher admission as a transfer student. The District Court granted petitioners' motion to certify a class consisting of individuals who applied for and were denied admission to the LSA for academic year 1995 and forward and who are members of racial or ethnic groups that respondents treated less favorably on the basis of race. Hamacher, whose claim was found to challenge racial discrimination on a classwide basis, was designated as the class representative. On cross-motions for summary judgment, respondents relied on Justice Powell's principal opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317, which expressed the view that the consideration of race as a factor in admissions might in some cases serve a compelling government interest. Respondents contended that the LSA has just such an interest in the educational benefits that result from having a racially and ethnically diverse student body and that its program is narrowly tailored to serve that interest. The Court agreed with respondents as to the LSA's current admissions guidelines and granted them summary judgment in that respect. However, the Court also found that the LSA's admissions guidelines for 1995 through 1998 operated as the functional equivalent of a quota running afoul of Justice Powell's Bakke opinion, and thus granted petitioners summary judgment with respect to respondents' admissions programs for those years. While interlocutory appeals were pending in the Sixth Circuit, that court issued an opinion in Grutter v. Bollinger, post, p. ____, upholding the admissions program used by the University's Law School. This Court granted certiorari in both cases, even though the Sixth Circuit had not yet rendered judgment in this one.

Held:

1. Petitioners have standing to seek declaratory and injunctive relief. The Court rejects Justice Stevens' contention that, because Hamacher did not actually apply for admission as a transfer student, his future injury claim is at best conjectural or hypothetical rather than real and immediate. The "injury in fact" necessary to establish standing in this type of case is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666. In the face of such a barrier, to establish standing, a party need only demonstrate that it is able and ready to perform and that a discriminatory policy prevents it from doing so on an equal basis. Ibid. In bringing his equal protection challenge against the University's use of race in undergraduate admissions, Hamacher alleged that the University had denied him the opportunity to compete for admission on an equal basis. Hamacher was denied admission to the University as a freshman applicant even though an underrepresented minority applicant with his qualifications would have been admitted. After being denied admission, Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions. He therefore has standing to seek prospective relief with respect to the University's continued use of race. Also rejected is Justice Stevens' contention that such use in undergraduate transfer admissions differs from the University's use of race in undergraduate freshman admissions, so that Hamacher lacks standing to represent absent class members challenging the latter. Each year the OUA produces a document setting forth guidelines for those seeking admission to the LSA, including freshman and transfer applicants. The transfer applicant guidelines specifically cross-reference factors and qualifications considered in assessing freshman applicants. In fact, the criteria used to determine whether a transfer applicant will contribute to diversity are identical to those used to evaluate freshman applicants. The only difference is that all underrepresented minority freshman applicants receive 20 points and "virtually" all who are minimally qualified are admitted, while "generally" all minimally qualified minority transfer applicants are admitted outright. While this difference might be relevant to a narrow tailoring analysis, it clearly has no effect on petitioners' standing to challenge the University's use of race in undergraduate admissions and its assertion that diversity is a compelling state interest justifying its consideration of the race of its undergraduate applicants. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 159; Blum v. Yaretsky, 457 U.S. 991, distinguished. The District Court's carefully considered decision to certify this class action is correct. Cf. Coopers & Lybrand v. Livesay, 437 U. S. 463, 469. Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrates that he may maintain the action. Pp. 11-20.

2. Because the University's use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents' asserted interest in diversity, the policy violates the Equal Protection Clause. For the reasons set forth in Grutter v. Bollinger, post, at 15-21, the Court has today rejected petitioners' argument that diversity cannot constitute a compelling state interest. However, the Court finds that the University's current policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single "underrepresented minority" applicant solely because of race, is not narrowly tailored to achieve educational diversity. In Bakke, Justice Powell explained his view that it would be permissible for a university to employ an admissions program in which "race or ethnic background may be deemed a 'plus' in a particular applicant's file." 438 U.S., at 317. He emphasized, however, the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual's ability to contribute to the unique setting of higher education. The admissions program Justice Powell described did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity. See id., at 315. The current LSA policy does not provide the individualized consideration Justice Powell contemplated. The only consideration that accompanies the 20-point automatic distribution to all applicants from underrepresented minorities is a factual review to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a "particular black applicant" could be considered without being decisive, see id., at 317, the LSA's 20-point distribution has the effect of making "the factor of race … decisive" for virtually every minimally qualified underrepresented minority applicant, ibid. The fact that the LSA has created the possibility of an applicant's file being flagged for individualized consideration only emphasizes the flaws of the University's system as a whole when compared to that described by Justice Powell. The record does not reveal precisely how many applications are flagged, but it is undisputed that such consideration is the exception and not the rule in the LSA's program. Also, this individualized review is only provided after admissions counselors automatically distribute the University's version of a "plus" that makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant. The Court rejects respondents' contention that the volume of applications and the presentation of applicant information make it impractical for the LSA to use the admissions system upheld today in Grutter. The fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system….

SIGNIFICANCE

The Gratz decision represents only one-half of the university admissions equation decided by the Supreme Court in 2003; the other component was determined in the case of Grutter et al v. Bollinger, a 2003 case that challenged the admissions procedures in place at the University of Michigan's Law School. In Gratz, the majority of the Court clearly finds the use of a racial "points" structure in the university's undergraduate admissions system to be akin to a rigid quota and therefore inconsistent with the holistic approach that the Court had endorsed in Bakke concerning admissions standards.

The Michigan undergraduate admissions system also scored other attributes of applicants that were unrelated to race. These qualities included athletic participation, the socioeconomic circumstances of the applicant, Michigan residency, and demonstrated leadership skills.

The Grutter case, like Bakke, arose in a professional school setting where the overall competition to win acceptance into the faculty was significantly higher than at the undergraduate admissions level. The Court was clearly prepared to accept that there are different factors at play between the Gratz undergraduate scenario and the Grutter professional school application. In Grutter, the affirmative action applications system was upheld because the court found that the University of Michigan Law School admissions procedures sufficiently considered each applicant as an individual and that race was not a predominate factor in acceptance into the law school, unlike the points system employed for Michigan undergraduates.

In both cases, as in Bakke, the Supreme Court was careful to emphasize that the concept of racial diversity was a meaningful and a legitimate objective of an American university. Implicit in the reasoning in both Gratz and Grutter is the proposition that while the university application process may be perceived as one based upon the principles of a pure meritocracy, the creation of an ideal university learning environment can properly go beyond scholastically qualified applicants to specifically include minority candidates without breaching the equality rights of a person who is denied admission.

The dissenting opinions in Gratz echoed some of the broader-based societal reasons as to why the university could justify its points system for blacks and other identified minorities. Justice Ruth Bader Ginsburg, the author of the minority judgment, saw the university admissions process in classic affirmative action terms: so long as racism exists in society at large, coupled with inequities of opportunity and income, points systems and quota systems of all kinds will be necessary to achieve equality over time.

A further significant facet of the Gratz decision was the organization whose counsel advanced the arguments against the affirmative action programs at the University of Michigan. Gratz was a class action suit brought by the Center for Individual Rights, a conservative legal advocacy group based in Washington, D.C., that also acted for the applicant in the Grutter decision. The Center for Individual Rights advocates numerous conservative causes; the organization is styled as a counterbalance to the perceived liberal influence in the American justice system cast by organizations such as the American Civil Liberties Union.

Of interest is the time frame within which the Gratz proceeding (and its companion, Grutter) unfolded between the denial of admission at the University of Michigan and the decisions of the Supreme Court. When the ruling came eight years after the 1995 application, Gratz had moved ahead with her life and career aspirations, and admission into the university's freshman class was no longer a realistic remedy. Gratz represents a relatively rare instance of the advancement of a pure legal principle versus the seeking of personal benefit.

FURTHER RESOURCES

Books

Ibarra, Robert A. Beyond Affirmative Action: Refraining the Context of Higher Education. Madison: University of Wisconsin Press, 2001.

Schunck, Peter H. Diversity in America: Keeping Government at a Safe Distance. Cambridge, Mass.: Harvard University Press, 2003.

Web sites

National Public Radio. "Split Ruling on Affirmative Action." June 23, 2003 〈http://www.npr.org/news/special/michigan〉 (accessed June 14, 2006).

University of Pittsburgh Law School. "Learning from Living: The University of Michigan Affirmative Action Cases." September 5, 2003 〈http://www.jurist.law.pitt.edu/forum/symposium-aa/bell.php〉 (accessed June l3, 2006).

University of Pittsburgh Law School. "Some Observations on Grutter." September 5, 2003 〈http://www.jurist.law.pitt.edu/forum/symposium-aa/shields.php〉 (accessed June 13, 2006).