Justice Thomas in Grutter V. Bollinger: Can Passion Play a Role in a Jurist's Reasoning?

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INTRODUCTION

Among the most widely anticipated decisions of the United States Supreme Court's 2002 Term were the Michigan affirmative action cases. The companion cases involved challenges to the University of Michigan's (the "University") use of race as a factor in admissions at the undergraduate and Law School levels. In Grate v. Bollinger,1 the Court struck down the University's policy at the undergraduate level because "the University's policy, which automatically distribute [d] 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, [was] not narrowly tailored to achieve [an] interest in educational diversity."2 In Grutier v. Bollinger,3 the Court upheld the University of Michigan Law School's (the "Law School") policy which allowed race to be used as a factor in admissions decisions.4

The Grutter case arose when the Law School rejected the application of Barbara Grutter, a white Michigan resident with an undergraduate grade point average of 3.8 and a LSAT score of 161.5 In a suit filed against the Law School, she claimed that her application was denied because the Law School made race a " 'predominant' factor" in its decision and, in so doing, favored minority applicants with similar credentials.6 After a fifteen-day bench trial, the United States District Court for the Eastern District of Michigan determined that the Law School's use of race in its admissions decisions was unconstitutional.7 Using a strict scrutiny standard, the court held that the Law School did not have a compelling interest in a diverse student body, and even if it did, it "had not narrowly tailored its use of race to further that interest."8

The United States Court of Appeals for the Sixth Circuit, sitting en bane, reversed the district court's decision.9 The court determined that the Supreme Court's decision in Regents of University of California v. Bakke10 established that a university's goal of diversity was a compelling state interest.11 Furthermore, the court held that the Law School's use of race in its admissions policy was narrowly tailored to achieve such an interest.12 The United States Supreme Court granted certiorari to resolve the issue of "[w]hether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities."13

In a five to four decision, the Court determined that the policy did not violate the Equal Protection Clause of the Constitution.14 In reaching that conclusion, the Court found that the Law School used race in a narrowly tailored fashion in making admissions decisions and did so "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."15 In the majority opinion, written by justice O'Connor, the Court distinguished the Law School's flexible admissions policy from an unconstitutional quota system.16 The Court noted that nothing prohibited the Law School from "consider [ing] race or ethnicity more flexibly as a 'plus' factor in the context of individualized consideration of each and every applicant."17 Because the Law School's flexible admissions policy took into account many factors other than race, the Court found that the school's diversity goals were broader than race.18 Therefore, the Court concluded that "the Law School's race-conscious admissions program [did] not unduly harm non-minority applicants."19

One of the four justices who did not sign the majority's opinion was Clarence Thomas, the lone African-American member of the Court. justice Thomas wrote a separate opinion in which he concurred in part and dissented in part.20 His opinion attracted attention for two reasons: first, the belief that he has been the beneficiary of those same policies to which he objects, and second, the perception that he has not evaluated accurately his own life experiences which form the basis of his views about affirmative action. …