Episode 22: Grutter v. Bollinger (2003)

Date of Publication/发布日期

January 29, 2021

Author/发布者

Curtis Westbay

Language/语言

English

Files & media

Volume

Volume 1 2020-2021

Introduction

Why care about American Supreme Court cases regarding American college admission? You don’t need to care. I have found the next three court cases I will discuss (two of which rose to the Supreme Court)—Grutter v. Bollinger, Fisher v. University of Texas, and Students for Fair Admission v. Harvard—to be eye-opening. Without their context, I don’t know that I would understand why it is that selective universities in the U.S. describe their admission process so obliquely. With buzzwords like “holistic review,” and misleading phrases like “no minimum score to apply,” colleges “try to create a well-rounded, strong incoming class.”

Last week, I briefly described a court case called Regents of University of California v. Bakke. That case, unbeknownst to the Justices who decided it, would set the stage for the intentional obliqueness with which colleges discuss their admission practices now. In Bakke, the Court deemed UC-Davis’s special admission program for underrepresented students (who would receive 16 of the 100 spots in the medical school’s incoming class) to be an un-Constitutional violation of the 14th Amendment’s Equal Protection Clause. In interpretation, the Court has held that there were, essentially, two things that they objected to in UC-Davis’s admission policy: the strict, defined quota and the justification that admitting minorities with lower standards was a remedy for past and present societal racial discrimination. As a workaround, race has been, since Bakke, been considered a “soft” variable, i.e. one factor that can be considered in college admission, alongside other non-quantitative factors like legacy status, athletic participation, strength of essays, enthusiasm of recommendations, and strength of curriculum.

Since Bakke, cases like the one at issue today have reinforced the ways in which colleges skirt the matter of past racial injustice in constructing their admission policies while still, functionally, achieving the same ends. In fact, when the University of Michigan convened a faculty committee in 1992 to decide upon the admission policies that they would use—policies conceived of with the express purpose of, among other more noble goals, avoiding litigation—they had the precedent of Bakke in mind. That they had to avoid numerical quotas in constructing an incoming cohort of students was a given, even if the standards for students of difference racial and socioeconomic backgrounds were vastly different. And when Lee Bollinger, the former Dean of the UM Law School, was sued in 2002 by a rejected applicant named Barbara Grutter, the legal representatives of UM made pains to clarify that their policy served a “compelling interest,” just not the one that had been roundly rejected by the Supreme Court in Bakke.

Background and facts of the case

• Barbara Grutter was a white Michigander who applied to the UM Law School in 1996 with a 3.8 undergraduate GPA and a 161 LSAT score. She was waitlisted before eventually being rejected.
• At the time, UM’s Law School received around 3,500 applications every year for 350 spots.
• The question: did UM Law School’s admission process discriminate against white applicants by creating higher standards for them compared with non-white applicants in violation of the 14th Amendment to the Constitution?
• Government institutions, like the University of Michigan (a public university), must abide by the 14th Amendment (and all others). Whenever a government institution discriminates against a person or violates their Constitutional rights, they must prove, to varying degrees in different circumstances, that their actions were necessary.
• UM’s legal team argued that the interest they had in ensuring a diverse student population was compelling, even though they did concede that the quantitative standard for white applicants was higher than for minority applicants.
• In 2000, 209/422 (49.5% of) white applicants with an LSAT score between 163 and 167 were rejected by UM’s Law School. Sixty-three out of 77 black applicants with scores above 155 were accepted (81.8%).
• In 2000, black students made up 1.1% of law school applicants in the U.S. with scores above 165, but made up 11.1% of the total number of applicants.
• In a 5-4 decision, the Supreme Court ruled in favor of the University of Michigan, stating its Law School admission policies did not violate the Equal Protection clause.
• Provided that race was only one “soft variable” used in admission decisions, and there was no racial quota, UM and other schools in the U.S. were not violating Constitutional Equal Protection, according to the decision of the Court.

Analysis and implications

• Because in Grutter v. Bollinger the petitioner (Barbara Grutter) was making a claim of racial discrimination, the Court applies a standard of judicial review called “strict scrutiny.”
• Since the 1930’s, courts have applied strict scrutiny as the standard in cases regarding discrimination based on race, national origin, or religious preference. The concept of scrutiny of which there are three levels—strict scrutiny, intermediate scrutiny (in cases of gender-based discrimination), and rational basis review (for all other instances of discrimination)—was created in a footnote to a 1938 Supreme Court case. Facially, strict scrutiny is poorly defined: the government must have a “compelling interest” to take action that is discriminatory through laws and policies that are “narrowly tailored” to achieve that desired interest.
• A compelling interest has been interpreted by the Court to be an interest that is essential or indispensable. Of course, depending on the ideological composition of the Supreme Court at the time a case is decided and the degree to which certain judicial precedents are adhered to, even the essentiality of an abridgement of a person’s Constitutional rights isn’t inarguable. In his dissent to this case, though his career is built upon a commitment (that I personally find harmful) to limiting and eliminating the institution of affirmative action, Justice Clarence Thomas wrote a fairly convincing argument that the University of Michigan’s admission policies were not serving an interest compelling enough to disadvantage white applicants on the basis of race.
• Thomas’s assertion that the benefits afforded to a group of people via exposure to a diversity of ideas, backgrounds, and experiences is not the province of an elite law school like the University of Michigan is not an absurd one. But it was the only rationalization available to the University of Michigan in the shadow of Bakke. In Bakke, the Supreme Court rejected as compelling interests: racial balancing in admission, to account for historical injustices; remedying modern, measurable disparities in representation in professional fields; and producing physicians who would go on to serve underserved minority communities. The Court accepted as a compelling interest “the attainment of a diverse student body.” And so, ever since, colleges have leaned upon that justification when treating applicants differently according to their race and socioeconomic status.
• Bakke also made it clear that the Court would reject any categorical consideration of applicants on the basis of race as un-Constitutional, and race could only factor into admission decisions on an individual basis. Thus, the idea of holistic application review was born not out of principle, but out of fear of legal liability and the loss of government support that could accompany it. Again, this is not speculative on my part—Professor Richard Lempert, who in 1992 served as the chair of a faculty committee at UM that was convened to adjust admission policies, testified before the Supreme Court that Bakke and its precedent was something the committee had in mind when establishing the procedures through which UM would make admission decisions.

Conclusion

• Not even 50 years removed from the Civil Rights movement in the United States that brought organized state violence against black people asking for equal protection under the law; not even 60 years removed from Brown v. Board of Education, the Supreme Court case that ordered the desegregation of American public schools; not even 150 years removed from the end of African-American slavery and the 14th Amendment which was ratified in response to its end, the petitioners in Grutter v. Bollinger, and soon after those in Fisher v. University of Texas and Students for Fair Admission v. Harvard, reflect a profound tone deafness or a myopic worldview, at best, in asserting that admission policies at those institutions are discriminatory.
• That American universities don’t treat every student equally is an appropriate response to the fact that minority communities were carefully segregated and underserved since the American Civil War. Historically, black, Hispanic, and Native American students have performed worse on standardized tests than white people in America, not because they are in any way less capable, but because systemic violence perpetrated against them in the form of, among other things, segregated educational resources, aggressive law enforcement and disproportionately high rates of incarceration, intimidation tactics from the majority, and miniscule government funding and support have systematically underprepared them.
• To say that the University of Michigan, the University of Texas, and Harvard do not consciously consider the racial composition of their incoming classes would be a lie. To say that they only treat applicants differently, individually, on the basis of race because of the compelling interest of academic quality that is increased by discursive spaces that include minority students is also a lie. But they’ve been hamstrung into doing so by the American courts that have, since Bakke, called it un-Constitutional to “right” lopsided American institutions that skew heavily in favor of white citizens in the form of something so small, so trivial as college acceptances are in the larger context of American historical inequity.
• A strict textual reading of the 14th Amendment’s Equal Protection clause casts asunder the entire premise of its ratification—that newly-freed slaves would enjoy the protection of law and due process. Opponents of affirmative action who count themselves among textualists and originalists in interpreting the Constitution tie themselves in knots to find justifications for politically-convenient outcomes. Grutter v. Bollinger is no exception. But for roughly the last half century, those are the conditions that judicial activists have been forced to operate under. Those conditions only grew more limiting between Grutter v. Bollinger and Fisher v. University of Texas, which will be the topic of next week’s post.