Supporters of race-based affirmative action breathed a sigh of relief on June 23, 2003 when the U.S. Supreme Court's split decision in the University of Michigan cases approved the continued use of race in admissions. But a studied analysis of Grutier v. Bollinger, Grate v. Bollinger, and their context suggests that the decisions offer only a temporary and limited reprieve for race-based admissions policies.3 The marked contrast between existing admissions policies and the new legal standard, the Court's imposition of durational limits on racial admissions preferences, and the sharp tensions within the Gratz and Grutier decisions all suggest a host of issues for future legal challenges to race-based admissions. Such litigation will likely force a decreased emphasis on-if not the complete elimination ofrace as a factor in admissions, and might even hasten the demise of the diversity rationale itself by demonstrating that it is unworkable.
This article begins by summarizing the new legal standard for race-based admissions that resulted from the Grutter and Gratz decisions. It then describes and discusses potential issues for future litigation in this area, including various issues of narrow tailoring and important questions concerning a school's reliance on the diversity rationale. Along the way, the article also touches on the relationship between these issues and the broader question of the diversity rationale's long term viability.
II. OVERVIEW OF THE NEW LEGAL STANDARD
In Grutter, five Justices voted to uphold the "[University of Michigan] Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."4 As a central part of its strict scrutiny analysis, the Court deferred to the Law School's judgment "that a 'critical mass' of underrepresented minorities is necessary to further its compelling interest.'" Turning to the narrow tailoring prong of its analysis, the Court accepted the Law School's assertions that its admissions program does not involve a quota or "mechanical, predetermined diversity 'bonuses' based on race or ethnicity," and that the program "adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions."6 In Grate, on the other hand, the Justices were faced with an undergraduate admissions system that admittedly and "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.7 Six Justices agreed that this use of race by the University's College of Literature, Science, and the Arts was not narrowly tailored and was, therefore, unconstitutional.8
Given the Court's ruling that the educational benefits of diversity satisfy the compelling interest prong of strict scrutiny, the focus of future legal challenges to race-based admissions will-at least in the short-term-focus on the narrow tailoring requirements laid down by Grate and Grutier. Those restrictions on the use of race in admissions can be thought of as falling into two categories. One category contains restrictions on the current scope of racial admissions preferences. The other category concerns the obligation of schools to transition away from racebased methods of achieving diversity.
Concerning the current scope of preferences, the Michigan decisions held that "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."9 Therefore, a race-based "admissions program must be 'flexible enough to consider all pertinent elements of diversity . . . and to place them on the same footing for consideration."10 The Supreme Court upheld the University of Michigan Law School's race-based admissions system, in part, because it "considers race as one factor among many. …