Gratz v. Bollinger

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Jennifer Gratz applied for admission to the fall 1995 entry class of University of Michigan’s College of Literature, Science, and the Arts (LSA). Patrick Hamacher similarly applied for the fall 1997 entry class. Both were Caucasian and residents of Michigan. The university used a rolling admissions system. Gratz was rated as well qualified but less competitive than the first round of students who were accepted. Hamacher was rated as qualified but not at the level necessary for first round acceptance. Neither was ultimately offered admission. Both continued their academic careers at other state universities. In 1997, Gratz and Hamacher filed a class-action lawsuit against President Lee Bollinger and other university officials claiming the university’s admissions policies violated rights of applicants from 1995 forward under the Fourteenth Amendment equal protection clause as well as the Civil Rights Act of 1964

The university’s Office of Undergraduate Admissions (OUA) considered a number of traditional factors in making its decisions, including high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, and leadership. It also considered race, especially the race of underrepresented minorities (African Americans, Hispanics, and Native Americans). The university generally admitted every qualified applicant from these groups.

Although specifics varied, in the years Gratz and Hamacher applied for admission the OUA placed all applicants on a grid with one axis representing a summary of traditional qualifications (the “GPA 2” score) and the other axis based on standardized test results. An applicant’s cell position on this grid determined admissions status, but underrepresented minorities were treated preferentially. For example, minority applicants falling into the same categories as Gratz and Hamacher received admission whereas they did not..

In 1998, the OUA discarded the grid system and adopted a “selection index” scoring system. Each applicant was given a score based largely on an evaluation of traditional criteria. Of particular relevance in this case, however, was an additional 20 points given to applicants for membership in an underrepresented racial or ethnic group. Much smaller numbers of points were awarded for other factors considered desirable. The maximum selection index score was 150. The guidelines generally worked as follows: 100-150 (admit), 95-99 (admit or postpone), 90-94 (postpone or admit), 75-89 (delay or postpone), 74 and below (delay or reject). The university claimed that this new system changed only the mechanics of selection and not how it considered race or ethnicity.

The process also allowed an admissions officer to flag applications that identified applicants who might have additional positive traits or experiences that made them potentially more attractive for admission. An admissions review committee specially examined these flagged applications.

The district court generally upheld the university’s procedures. The case was appealed, but the Supreme Court accepted this case prior to a final ruling by the Sixth Circuit Court of Appeals so that it could consider the University of Michigan’s undergraduate admissions program along with a similar case challenging the admissions policy of the university’s law school (Grutter v. Bollinger).

In its consideration of this case, the Supreme Court focused on the then operative “selection index” admissions procedure. The justices considered Justice Lewis Powell’s opinion announcing the judgment of the Court in Regents of the University of California v. Bakke (1978) as the most relevant precedent. The Powell opinion concluded that diversity in higher education may be a compelling state interest because of the educational value it brings. Consequently, race/ethnicity may be one factor in an admissions process that gives individualized attention to each applicant. However, no quotas may be imposed, and race cannot be an all-determining factor. Powell referred to the affirmative action procedures used by Harvard University as properly balancing these various factors.


CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioners . . . argue that even if the University’s interest in diversity can constitute a compelling state interest, the District Court erroneously concluded that the University’s use of race in its current freshman admissions policy is narrowly tailored to achieve such an interest. Petitioners argue that the guidelines the University began using in 1999 do not “remotely resemble the kind of consideration of race and ethnicity that Justice Powell endorsed in [Regents of the University of California v. Bakke (1978)].” . . . [R]espondents contend that the LSA (College of Literature, Science and Arts) policy provides the individualized consideration that “Justice Powell considered a hallmark of a constitutionally appropriate admissions program.” For the reasons set out below, we do not agree.

It is by now well established that “all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.” Adarand Constructors, Inc. vPeña (1995). This “‘standard of review . . . is not dependent on the race of those burdened or benefited by a particular classification.’” Thus, “any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest of judicial scrutiny.” Adarand.

To withstand our strict scrutiny analysis, respondents must demonstrate that the University’s use of race in its current admission program employs “narrowly tailored measures that further compelling governmental interests.” Because “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” our review of whether such requirements have been met must entail “‘a most searching examination.’” Adarand. We find that the University’s 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 the interest in educational diversity that respondents claim justifies their program.

In Bakke, Justice Powell reiterated that “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” He then explained, however, that in his view 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.” He explained that such a program might allow for “[t]he file of a particular black applicant [to] be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.” Such a system, in Justice Powell’s view, would be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.”

Justice Powell’s opinion in Bakke emphasized 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, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity. Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application.

The current LSA policy does not provide such individualized consideration. The LSA’s policy automatically distributes 20 points to every single applicant from an “underrepresented minority” group, as defined by the University. The only consideration that accompanies this distribution of points is a factual review of an application 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, the LSA’s automatic distribution of 20 points has the effect of making “the factor of race . . . decisive” for virtually every minimally qualified underrepresented minority applicant.

Also instructive in our consideration of the LSA’s system is the example provided in the description of the Harvard College Admissions Program, which Justice Powell both discussed in, and attached to, his opinion in Bakke. The example was included to “illustrate the kind of significance attached to race” under the Harvard College program. It provided as follows:

The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership as well as an apparently abiding interest in black power. If a good number of black students much like A but few like B had already been admitted, the Committee might prefer B; and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. (emphasis added).

This example further demonstrates the problematic nature of the LSA’s admissions system. Even if student C’s “extraordinary artistic talent” rivaled that of Monet or Picasso, the applicant would receive, at most, five points under the LSA’s system. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA’s system does not offer applicants the individualized selection process described in Harvard’s example. Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his “extraordinary talent.”

Respondents emphasize the fact that the LSA has created the possibility of an applicant’s file being flagged for individualized consideration by the ARC. We think that the flagging program 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 for this individualized consideration, but it is undisputed that such consideration is the exception and not the rule in the operation of the LSA’s admissions program. Additionally, 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.

Respondents contend that “[t]he volume of applications and the presentation of applicant information make it impractical for [LSA] to use [a highly individualized] . . . admissions system.” . . . But 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. Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.

We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment. We further find that the admissions policy also violates [the 1964 Civil Rights Act]. Accordingly, we reverse that portion of the District Court’s decision granting respondents summary judgment with respect to liability and remand the case for proceedings consistent with this opinion.

It is so ordered.


JUSTICE O’CONNOR, concurring.

 [T]he procedures employed by the University of Michigan’s Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. . . . [T]he Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from . . . consideration of each applicant’s individualized qualifications, including the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups. . . .

Although the Office of Undergraduate Admissions does assign 20 points to some “soft” variables other than race, the points available for other diversity contributions, such as leadership and service, personal achievement, and geographic diversity, are capped at much lower levels. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race. . . .

The only potential source of individualized consideration appears to be the Admissions Review Committee. The evidence in the record, however, reveals very little about how the review committee actually functions. And what evidence there is indicates that the committee is a kind of afterthought, rather than an integral component of a system of individualized review. . . .

For these reasons, the record before us does not support the conclusion that the University of Michigan’s admissions program for its College of Literature, Science, and the Arts—to the extent that it considers race—provides the necessary individualized consideration. The University, of course, remains free to modify its system so that it does so. But the current system, as I understand it, is a nonindividualized, mechanical one. As a result, I join the Court’s opinion reversing the decision of the District Court.


JUSTICE THOMAS, concurring.

I join the Court’s opinion because I believe it correctly applies our precedents. . . . [H]owever, I would hold that a State’s use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause.


JUSTICE BREYER, concurring in the judgment.

I concur in the judgment of the Court though I do not join its opinion. . . .

I agree with Justice Ginsburg that, in implementing the Constitution’s equality instruction, government decision makers may properly distinguish between policies of inclusion and exclusion for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally.


JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.

Petitioners seek forward-looking relief enjoining the University of Michigan from continuing to use its current race-conscious freshman admissions policy. Yet . . . the petitioners in this case had already enrolled at other schools before they filed their class-action complaint in this case. Neither petitioner was in the process of reapplying to Michigan through the freshman admissions process at the time this suit was filed, and neither has done so since. There is a total absence of evidence that either petitioner would receive any benefit from the prospective relief sought by their lawyer. While some unidentified members of the class may very well have standing to seek prospective relief, it is clear that neither petitioner does. Our precedents therefore require dismissal of the action. . . .

Accordingly, I respectfully dissent.


JUSTICE SOUTER, with whom JUSTICE GINSBURG joins as to [the merits], dissenting.

I agree with Justice Stevens [on the lack of standing issue]. . . . [But] because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court’s judgment.

The Court . . . finds fault with a scheme that “automatically” distributes 20 points to minority applicants because “[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.” The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.

The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale. . . . [This] does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.

Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the “plus” factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university’s admissions system. But petitioners do not have a convincing argument that the freshman admissions system operates this way. . . . It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant’s whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage. . . .

If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent.


JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.

Educational institutions, the Court acknowledges, are not barred from any and all consideration of race when making admissions decisions. But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. This insistence on “consistency,” Adarand, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.

In the wake “of a system of racial caste only recently ended,” large disparities endure. . . . “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.” 

The Constitution instructs all who act for the government that they may not “deny to any person . . . the equal protection of the laws.” In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.

Our jurisprudence ranks race a “suspect” category, “not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality.” But where race is considered “for the purpose of achieving equality,” no automatic proscription is in order. For, as insightfully explained, “[t]he Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.” United States vJefferson County Bd. of Ed., [Court of Appeals for the Ffth Circuit, 1966, Wisdom, J]. . . .

Examining in this light the admissions policy employed by the University of Michigan’s College of Literature, Science, and the Arts (College), and for the reasons well stated by Justice Souter, I see no constitutional infirmity. Like other top-ranking institutions, the College has many more applicants for admission than it can accommodate in an entering class. Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College. The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics, and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. Nor has there been any demonstration that the College’s program unduly constricts admissions opportunities for students who do not receive special consideration based on race.

The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment—and the networks and opportunities thereby opened to minority graduates—whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. . . . If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.

For the reasons stated, I would affirm the judgment of the District Court.