On June 23, 2003, the Supreme Court of the United States, in a five to four decision, substantially changed the nature of state imposed affirmative action when it held that diversity could serve as a "compelling government interest" and thus justify public sector preferential programs. Though this ruling pertained specifically to race-based preferential university admissions, it is likely to have wide ranging implications for all public sector affirmative action programs. One implication may include making it easier to justify state initiated affirmative action by diminishing the requirement to demonstrate the remedial motive behind such action.
The purpose of this article is to investigate the Supreme Court's Grutter v. Bollinger (1) and Gratz v. Bollinger (2) decisions and discuss their implications for preferential admissions policies in public higher education. To ensure that the reader has a full appreciation of the impact of the decisions, a brief review of the opposing political views of equal treatment/opportunity is provided. Furthermore, the purposes of the Equal Protection Clause and the history of affirmative action programs in the public sector are outlined. A brief discussion of what was resolved by Grutter and Gratz, followed by what was not resolved, is then detailed. Finally, the potential ramifications for affirmative action programs beyond college admissions posed by the Grutter and Gratz decisions are examined. But first, a synopsis of both cases is provided in order to facilitate the reader's understanding of the differences between the two admissions programs, and to understand why one was upheld as constitutional and the other was not.
One University, Two Admissions Policies
University of Michigan Law School Admissions Requirements
The University of Michigan Law School used both objective and subjective criteria in making admissions selection decisions. On the objective criteria side, the Law School Admission Test (LSAT) score, undergraduate coursework and performance were considered. On the subjective side, consideration was given to particular strengths, attainments or characteristics applicants possessed. Specific attention could be given to an applicant's employment experience, nonacademic performance or personal background. The stated objective for this delineation in applicants' qualifications was "to make the School a better and a livelier place in which to learn and to improve its service to the profession and the public." (3) Ethnic diversity was believed to be a desirable end as the admission policy stated.
In addition to its own interest in forming a class which is strengthened by the talents and diversity of its members, Michigan recognizes the public interest in increasing the number of lawyers from groups which the faculty identifies as significantly underrepresented in the legal profession. In particular, those who are African American, Mexican American, Native American or Puerto Rican and raised on the U.S. mainland are strongly encouraged to apply. (4)
The challenge to these criteria occurred in 1997 when Barbara Grutter, a Caucasian female, alleged that she was rejected because the law school used race "as a predominant factor, giving minority applicants a significantly greater chance of admission than students with similar credentials from disfavored racial groups." (5) The Federal District Court for the Eastern District of Michigan noted that had Grutter been a member of the favored group (African American or Hispanic), she would have been admitted into the law school. All African American applicants with an LSAT score of 159-160 and an undergraduate grade point average of 3.00 and above were admitted, whereas only one of 54 Asian applicants and four of 190 Caucasian applicants with these qualifications were admitted. (6) The only justification proffered by the school was that such preferences based on race and ethnicity were necessary to admit a "critical mass" of minority students in order to achieve classroom diversity. …