BARBARA GRUTTER, PETITIONER v. LEE BOLLINGER ET AL.
SUPREME COURT OF THE UNITED STATES
April 1, 2003, Argued
June 23, 2003, Decided
O'Connor opinion:
The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondents Bollinger et al. 10; App. 121-122.[page 11, actually, of the brief. This would be key evidence that diversity, not just race, was genuinely important. But see the Rehnquist's fuller description of what Michigan does:]
Rehnquist dissent:
... The school asserts that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Ante, at 26 (citing Brief for Respondents Bollinger et al. 10). Specifically, the Law School states that "sixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admissions Test (LSAT)]" while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Brief for Respondents Bollinger et al. 10.[page 11, actually, of the brief. It says that 85 Caucasian and Asian-American applicants were admitted. It is unclear whether that 85 included people who were worse on just one dimension, or on both.]
Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159- 160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200-201. Meanwhile, [*76] 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151-153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200-201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted. Id., at 198.[On Hispanics, see the note on Cubans below.
To summarize what O'Connor and Rehnquist are saying, each with their own spin: over the 5-year period, 6 African-Americans in that grid box or better were rejected, while 85 Caucasians and Asian-Americans in that box or lower were admitted.
We would need to know more about those 6 (about 1 per year)-- did they have criminal records or cheated in college?
This box is a peripheral one anyway, because all but 22 African-American applicants were in worse boxes. Here is a fairer comparison: 6 African-Americans with LSAT of 156 and GPA of 3.0 or better were rejected in 1995. Only 9 Caucasians/Asians with GPA below 3.0 (but with LSAT above 156; 7 of them above 169) were admitted. 0 Caucasians/Asians with LSAT below 156 were admitted (even if their GPA was high).
23 African-Americans with GPA less than 3.0 (3 with LSAT above 169) were admitted. 30 African-Americans with LSAT lower than 156 were admitted. 6 African-Americans with LSAT lower than 156 and GPA below 3.0 were admitted.]
Thus, not a single one of the 325 Caucasian/Asians with LSATs below 156 had other considerations which made them worth admittingbut 30 of the 290 African-Americans with LSATs below 156 did.
Bottom line: No other criterion--not even high GPA-- could make up for a low LSAT like being black did. Claims that admissions was about diversity rather than race were a sham.
Kennedy's dissent:
Dean Allan Stillwagon, who directed the Law School's Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the School's affirmative action policy. He testified that faculty members were "breathtakingly cynical" in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans.[Significance: Hispanics with moderately good scores who were rejected might have been Cuban-Americans--- or Republicans. "Hispanic" is tough to define, and people claiming that status but without undergraduate club memberships, etc. might have been rejected. The same goes for Indians. ]
Kennedy dissent:
The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra, at 3. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, "the further [he] went into the [admissions] season the more frequently [he] would want to look at these [reports] and see the change from day-to-day." These reports would "track exactly where [the Law School] stood at [*92] any given time in assembling the class," and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School's admissions policy told him the racial make-up of the entering class was "something [he] needed to be concerned about," and so he had "to find a way of tracking what's going on."[ I have heard of this kind of scheme before. The "normal" admissions procedure is by a faculty committee or some such conscientious body, and operates by looking at all factors. Then, during the summer when the faculty have gone home, the administrators fill out the class by accepting whoever they want, so they can fill a quota or let in politically well-connected people without faculty supervision---or guilt. ]The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School's goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School.
[ Scalia's paragraph below is a summary of the contradictions and general uselessness of the majority opinion. ]
Scalia dissent:
Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough [*101] evaluation of the applicant "as an individual," ante, at 24, and sufficiently avoids "separate admissions tracks" ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a "'good faith effort'" and has so zealously pursued its "critical mass" as to make it an unconstitutional de facto quota system, rather than merely "'a permissible goal.'" Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478 U. S 421, 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords "a degree of deference to a university's academic decisions," ante, at 16, "deference does not imply abandonment or abdication of judicial review," Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution's expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter [*102] . (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses -- through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution's racial preferences have gone below or above the mystical Grutter-approved "critical mass." Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution's composition of its generic minority "critical mass." I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state- provided education is no exception.[ Thomas's dissent is well-written and the most worth reading of the entire 95 pages of opinions: ]
Thomas dissent:
The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational benefits," ante, at 16. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference. n7 An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause. But see United States v. Fordice, 505 U.S. 717, 748 (1992) (THOMAS, J., concurring) ("Obviously, a State cannot maintain . . . traditions by closing particular institutions, historically white or historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected -- racial segregation.[ Quite true: if diversity is a compelling interest just because the university says it is, so must uniformity. The Southern schools ought to have been allowed to remain all-white, by the Court's reasoning--not out of bias, but if the schools were smart enough to claim that uniformity was important to education. ]
Thomas dissent:
Moreover one would think, in light of the Court's decision in United States v. Virginia, 518 U.S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia, a majority of the Court, without a word about academic freedom, accepted the all- male Virginia Military Institute's (VMI) representation that some changes in its "adversative" method of education would be required with the admission of women, id., at 540, but did not defer to VMI's judgment that these changes would be too great. Instead, the Court concluded that they were "manageable." Id., at 551, n. 19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id., at 533; Craig v. Boren, 429 U. S 190, 197 (1976). So in Virginia, where the standard of review dictated that greater flexibility be granted to VMI's educational policies than the Law School deserves here, this Court gave no deference. Apparently where the [*131] status quo being defended is that of the elite establishment -- here the Law School -- rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard.[ Just so. The majority justices are just writing their politics into the law. And O'Connor has a hard time deciding what her politics are. ]