Grutter v Bollinger and others.doc

8/10/2019 Grutter v Bollinger and others.doc

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Grutter v Bollinger and others

Supreme Court, United States

Rehnquist CJ, Breyer, Ginsburg, Kennedy, O'Connor, Salia, Stevens, Souter and

!homas JJ

!he SU"R#$# COUR! delivered the %ollo&ing udgments(

O'CO))OR J *delivering the opinion o% the ourt+( !his ase requires us to deide

&hether the use o% rae as a %ator in student admissions by the University o%

$ihigan a& Shool *the la& shool+ is unla&%ul(

-

.

The law school ranks among the nation's top law schools. It receives more than 3,500

applications each year for a class of around 350 students. Seeking to 'admit a group of

students who individually and collectively are among the most capale', the law schoollooks for individuals with 'sustantial promise for success in law school' and 'a strong

likelihood of succeeding in the practice of law and contriuting in diverse ways to thewell!eing of others'. "ore roadly, the law school seeks 'a mi# of students with varying

ackgrounds and e#periences who will respect and learn from each other'. In $%%&, the

ean of the law school charged a faculty committee with crafting a written admissionspolicy to implement these goals. In particular, the law school sought to ensure that its

efforts to achieve student ody diversity complied with this court's most recent ruling on

the use of race in university admissions. SeeRegents of University of California v Bakke

($%)*+ 3* -S &5. -pon the unanimous adoption of the committee's report y the lawschool faculty, it ecame the law school's official admissions policy.

The hallmark of that policy is its focus on academic aility coupled with a fle#ileassessment of applicants' talents, e#periences, and potential 'to contriute to the learningof those around them'. The policy re/uires admissions officials to evaluate each applicant

ased on all the information availale in the file, including a personal statement, letters of

recommendation, and an essay descriing the ways in which the applicant will contriuteto the life and diversity of the law school. In reviewing an applicant's file, admissions

officials must consider the applicant's undergraduate grade point average (12+ and law

school admissions test (S2T+ score ecause they are important (if imperfect+ predictors

of academic success in law school. The policy stresses that 'no applicant should eadmitted unless we e#pect that applicant to do well enough to graduate with no serious

academic prolems'.

The policy makes clear, however, that even the highest possile score does not guaranteeadmission to the law school. 4or does a low score automatically dis/ualify an applicant.

ather, the policy re/uires admissions officials to look eyond grades and test scores to

other criteria that are important to the law school's educational o6ectives. So!called'7soft8 variales' such as 'the enthusiasm of recommenders, the /uality of the

undergraduate institution, the /uality of the applicant's essay, and the areas and difficulty

of undergraduate course selection' are all rought to ear in assessing an 'applicant's

likely contriutions to the intellectual and social life of the institution'.


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The policy aspires to 'achieve that diversity which has the potential to enrich everyone's

education and thus make a law school class stronger than the sum of its parts'. The policy

does not restrict the types of diversity contriutions eligile for 'sustantial weight' in theadmissions process, ut instead recognises 'many possile ases for diversity admissions'.

The policy does, however, reaffirm the law school's long!standing commitment to 'one

particular type of diversity', that is, 'racial and ethnic diversity with special reference tothe inclusion of students from groups which have een historically discriminated against,

like 2frican9 2mericans, :ispanics and 4ative 2mericans, who without this commitment

might not e represented in our student ody in meaningful numers'. ;y enrolling a'7critical mass8 of * grade point average and $$ S2T score. The law school initially

placed the petitioner on a waiting list, ut suse/uently re6ected her application. In

ecemer $%%), the petitioner filed suit in the -nited States istrict ?ourt for the @asternistrict of "ichigan against the law school, the egents of the -niversity of "ichigan,

ee ;ollinger (ean of the law school from $%*) to $%%, and 1resident of the -niversity

of "ichigan from $%% to &00&+, Aeffrey ehman (ean of the law school+, and ennis

Shields (irector of 2dmissions at the law school from $%%$ until $%%*+. The petitioneralleged that respondents discriminated against her on the asis of race in violation of the

fourteenth amendmentB Title CI of the ?ivil ights 2ct of $%, )* Stat &5&, & -S?

D&000dB and ev Stat D$%)), as amended, & -S? D$%*$.

The petitioner further alleged that her application was re6ected ecause the law school

uses race as a 'predominant' factor, giving applicants who elong to certain minoritygroups 'a significantly greater chance of admission than students with similar credentials

from disfavored racial groups'. The petitioner also alleged that respondents 'had no

compelling interest to 6ustify their use of race in the admissions process'. The petitioner

re/uested compensatory and punitive damages, an order re/uiring the law school to offerher admission, and an in6unction prohiiting the law school from continuing to

discriminate on the asis of race. The petitioner clearly has standing to ring this lawsuit.

Northeastern Fla Chapter,Associated Gen Contractors of America v Jacksonville($%%3+50* -S 5 at .

The district court granted the petitioner's motion for class certification and for ifurcation

of the trial into liaility and damages phases. The class was defined asE'all persons who (2+ applied for and were not granted admission to the -niversity of

"ichigan aw School for the academic years since (and including+ $%%5 until the time

that 6udgment is entered hereinB and (;+ were memers of those racial or ethnic groups,


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including ?aucasian, that efendants treated less favoraly in considering their

applications for admission to the aw School.'

The district court heard oral argument on the parties' cross!motions for summary6udgment on && ecemer &000. Taking the motions under advisement, the district court

indicated that it would decide as a matter of law whether the law school's asserted interest

in otaining the educational enefits that flow from a diverse student ody wascompelling. The district court also indicated that it would conduct a ench trial on the

e#tent to which race was a factor in the law school's admissions decisions, and whether

the law school's consideration of race in admissions decisions constituted a race!aseddoule standard.

uring the $5!day ench trial, the parties introduced e#tensive evidence concerning the

law school's use of race in the admissions process. ennis Shields, irector of

2dmissions when the petitioner applied to the law school, testified that he did not directhis staff to admit a particular percentage or numer of minority students, ut rather to

consider an applicant's race along with all other factors. Shields testified that at the height

of the admissions season, he would fre/uently consult the so!called 'daily reports' that

kept track of the racial and ethnic composition of the class (along with other informationsuch as residency status and gender+. This was done, Shields testified, to ensure that a

critical mass of under!represented minority students would e reached so as to realise theeducational enefits of a diverse student ody. Shields stressed, however, that he did not

seek to admit any particular numer or percentage of under!represented minority

students.@rica "unFel, who succeeded Shields as irector of 2dmissions, testified that 'critical

mass' means 'meaningful numers' or 'meaningful representation', which she understood

to mean a numer that encourages under!represented minority students to participate in

the classroom and not feel isolated. "unFel stated there is no numer, percentage, orrange of numers or percentages that constitute critical mass. "unFel also asserted that

she must consider the race of applicants ecause a critical mass of under!represented

minority students could not e enrolled if admissions decisions were ased primarily onundergraduate 12s and S2T scores.

The current ean of the law school, Aeffrey ehman, also testified. ike the other law

school witnesses, ehman did not /uantify critical mass in terms of numers orpercentages. :e indicated that critical mass means numers such that under!represented

minority students do not feel isolated or like spokespersons for their race. Ghen asked

aout the e#tent to which race is considered in admissions, ehman testified that it varies

from one applicant to another. In some cases, according to ehman's testimony, anapplicant's race may play no role, while in others it may e a 'determinative' factor.

The district court heard e#tensive testimony from 1rofessor ichard empert, who

chaired the faculty committee that drafted the $%%& policy. empert emphasised that thelaw school seeks students with diverse interests and ackgrounds to enhance classroom

discussion and the educational e#perience oth inside and outside the classroom. Ghen

asked aout the policy's 'commitment to racial and ethnic diversity with special referenceto the inclusion of students from groups which have een historically discriminated

against', empert e#plained that this language did not purport to remedy past

discrimination, ut rather to include students who may ring to the law school a

perspective different from that of memers of groups which have not een the victims of


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such discrimination. empert acknowledged that other groups, such as 2sians and Aews,

have e#perienced discrimination, ut e#plained they were not mentioned in the policy

ecause individuals who are memers of those groups were already eing admitted to thelaw school in significant numers.

Hent Syverud was the final witness to testify aout the law school's use of race in

admissions decisions. Syverud was a professor at the law school when the $%%&admissions policy was adopted and is now ean of Canderilt aw School. In addition to

his testimony at trial, Syverud sumitted several e#pert reports on the educational

enefits of diversity. Syverud's testimony indicated that when a critical mass of under!represented minority students is present, racial stereotypes lose their force ecause non!

minority students learn there is no 'minority viewpoint' ut rather a variety of viewpoints

among minority students.

In an attempt to /uantify the e#tent to which the law school actually considers race inmaking admissions decisions, the parties introduced voluminous evidence at trial.

elying on data otained from the law school, the petitioner's e#pert, r Hinley arntF,

generated and analysed 'admissions grids' for the years in /uestion ($%%59&000+. These

grids show the numer of applicants and the numer of admittees for all cominations of12s and S2T scores. r arntF made 'cell!y!cell' comparisons etween applicants of

different races to determine whether a statistically significant relationship e#istedetween race and admission rates. :e concluded that memership in certain minority

groups 'is an e#tremely strong factor in the decision for acceptance', and that applicants

from these minority groups 'are given an e#tremely large allowance for admission' ascompared to applicants who are memers of non!favoured groups. r arntF conceded,

however, that race is not the predominant factor in the law school's admissions calculus

($& Tr $$9$3 ($0 $0 e &00$++.

r Stephen audenush, the law school's e#pert, focused on the predicted effect ofeliminating race as a factor in the law school's admission process. In r audenush's

view, a race!lind admissions system would have a 'very dramatic', negative effect on

under!represented minority admissions. :e testified that in &000, 35J of under!represented minority applicants were admitted. r audenush predicted that if race were

not considered, only $0J of those applicants would have een admitted. -nder this

scenario, under!represented minority students would have comprised J of the enteringclass in &000 instead of the actual figure of $>5J.

In the end, the district court concluded that the law school's use of race as a factor in

admissions decisions was unlawful. 2pplying strict scrutiny, the district court determined

that the law school's asserted interest in assemling a diverse student ody was notcompelling ecause 'the attainment of a racially diverse class K was not recogniFed as

such yRegents of University of California v Bakkeand is not a remedy for past

discrimination'. The district court went on to hold that even if diversity were compelling,the law school had not narrowly tailored its use of race to further that interest. The district

court granted the petitioner's re/uest for declaratory relief and en6oined the law school

from using race as a factor in its admissions decisions. The ?ourt of 2ppeals entered astay of the in6unction pending appeal.

Sitting en anc, the ?ourt of 2ppeals reversed the district court's 6udgment and vacated

the in6unction. The ?ourt of 2ppeals first held that 1owell A's opinion inRegents of

University of California v Bakkewas inding precedent estalishing diversity as a


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as amici curiae at $&9$3 (law school admissions programmes employ 'methods designed

from and ased on Austice 1owell's opinion inBakke'+B rief for 2mherst ?ollege and

others as amici curiae at &) ('2fterBakke, each of the amici (and undoutedly otherselective colleges and universities as well+ reviewed their admissions procedures in light

of Austice 1owell's opinion K and set sail accordingly'+. Ge therefore discuss 1owell A's

opinion in some detail.1owell A egan y stating thatE

'the guarantee of e/ual protection cannot mean one thing when applied to one individual

and something else when applied to a person of another color. If oth are not accordedthe same protection, then it is not e/ual.' (($%)*+ 3* -S &5 at &*%9&%0.+

In 1owell A's view, when governmental decisionsE

'touch upon an individual's race or ethnic ackground, he is entitled to a 6udicial

determination that the urden he is asked to ear on that asis is precisely tailored toserve a compelling governmental interest.' (($%)*+ 3* -S &5 at &%%.+

-nder this e#acting standard, only one of the interests asserted y the university survived

1owell A's scrutiny.

irst, 1owell A re6ected an interest in 'reducing the historic deficit of traditionallydisfavored minorities in medical schools and in the medical profession' as an unlawful

interest in racial alancing (($%)*+ 3* -S &5 at 309 30)+. Second, 1owell A re6ectedan interest in remedying societal discrimination ecause such measures would risk

placing unnecessary urdens on innocent third parties 'who ear no responsiility for

whatever harm the eneficiaries of the special admissions program are thought to havesuffered' (($%)*+ 3* -S &5 at 3$0+. Third, 1owell A re6ected an interest in 'increasing

the numer of physicians who will practice in communities currently underserved',

concluding that even if such an interest could e compelling in some circumstances the

programme under review was not 'geared to promote that goal' (($%)*+ 3* -S &5 at30, 3$0+.

1owell A approved the university's use of race to further only one interestL 'the attainment

of a diverse student ody' (($%)*+ 3* -S &5 at 3$$+. Gith the important proviso that'constitutional limitations protecting individual rights may not e disregarded', 1owell A

grounded his analysis in the academic freedom that 'long has een viewed as a special

concern of the irst 2mendment' (($%)*+ 3* -S &5 at 3$&, 3$+. 1owell A emphasisedthat nothing less than the '7nation's future depends upon leaders trained through wide

e#posure8 to the ideas and mores of students as diverse as this 4ation of many peoples'

(($%)*+ 3* -S &5 at 3$3 (/uoting'eyishian v Board of Regents of University of State

of Ne! (ork($%)+ 3*5 -S 5*% at 03+. In seeking the 'right to select those students whowill contriute the most to the 7roust e#change of ideas8', a university seeks 'to achieve

a goal that is of paramount importance in the fulfillment of its mission' (($%)*+ 3* -S

&5 at 3$3+. ;oth 'tradition and e#perience lend support to the view that the contriutionof diversity is sustantial'.

1owell A was, however, careful to emphasise that in his view race 'is only one element in

a range of factors a university properly may consider in attaining the goal of aheterogeneous student ody' (($%)*+ 3* -S &5 at 3$+. or 1owell A, 'it is not an

interest in simple ethnic diversity, in which a specified percentage of the student ody is

in effect guaranteed to e memers of selected ethnic groups', that can 6ustify the use of

race (($%)*+ 3* -S &5 at 3$5+. ather, 'the diversity that furthers a compelling state


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interest encompasses a far roader array of /ualifications and characteristics of which

racial or ethnic origin is ut a single though important element')

In the wake of our fractured decision inRegents of University of California v Bakke,courts have struggled to discern whether 1owell A's diversity rationale, set forth in part of

the opinion 6oined y no other 6ustice, is none the less inding precedent underMarks v

US. In that case, we e#plained that 'when a fragmented court decides a case and no singlerationale e#plaining the result en6oys the assent of five 6ustices, the holding of the court

may e viewed as that position taken y those memers who concurred in the 6udgments

on the narrowest grounds' (($%))+ 30 -S $** at $%3+. 2s the divergent opinions of thelower courts demonstrate, however, 'this test is more easily stated than applied to the

various opinions supporting the result in


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Strict scrutiny is not 'strict in theory, ut fatal in fact'.Adarand Constr*ctors $nc v +ena

($%%5+ 5$5 -S &00 at &3). 2lthough all governmental uses of race are su6ect to strict

scrutiny, not all are invalidated y it. 2s we have e#plained, 'whenever the governmenttreats any person une/ually ecause of his or her race, that person has suffered an in6ury

that falls s/uarely within the language and spirit of the ?onstitution's guarantee of e/ual

protection' (($%%5+ 5$5 -S &00 at &&%9 &30+. ;ut that oservation 'says nothing aout theultimate validity of any particular lawB that determination is the 6o of the court applying

strict scrutiny' (($%%5+ 5$5 -S &00 at &30+. Ghen race!ased action is necessary to

further a compelling governmental interest, such action does not violate the constitutionalguarantee of e/ual protection so long as the narrow!tailoring re/uirement is also satisfied.

?onte#t matters when reviewing race!ased governmental action under the e/ual

protection clause. See Gomillion v &ightfoot($%0+ 3 -S 33% at 3393

(admonishing that, 'in dealing with claims under road provisions of the ?onstitution,which derive content y an interpretive process of inclusion and e#clusion, it is

imperative that generaliFations, ased on and /ualified y the concrete situations that

gave rise to them, must not e applied out of conte#t in disregard of variant controlling

facts'+. InAdarand Constr*ctors $nc v +ena($%%5+ 5$5 -S &00 at &&*-we made clearthat strict scrutiny must take '7relevant differences8 into account'. Indeed, as we

e#plained, that is its 'fundamental purpose'. 4ot every decision influenced y race ise/ually o6ectionale and strict scrutiny is designed to provide a framework for carefully

e#amining the importance and the sincerity of the reasons advanced y the governmental

decision!maker for the use of race in that particular conte#t.

---

.

Gith these principles in mind, we turn to the /uestion whether the law school's use of

race is 6ustified y a compelling state interest. ;efore this court, as they have throughoutthis litigation, respondents assert only one 6ustification for their use of race in the

admissions processL otaining 'the educational enefits that flow from a diverse student

ody'. ;rief for respondents ;ollinger et al at i. In other words, the law school asks us torecognise, in the conte#t of higher education, a compelling state interest in student ody

diversity.

Ge first wish to dispel the notion that the law school's argument has een foreclosed,either e#pressly or implicitly, y our affirmative!action cases decided sinceRegents of

University of California v Bakke. It is true that some language in those opinions might e

read to suggest that remedying past discrimination is the only permissile 6ustification for

race!ased governmental action. See egRichmond v JA Croson Co($%*%+ ** -S % at%3 (plurality opinion+ (stating that unless classifications ased on race are 'strictly

reserved for remedial settings, they may in fact promote notions of racial inferiority and

lead to a politics of racial hostility'+. ;ut we have never held that the only governmentaluse of race that can survive strict scrutiny is remedying past discrimination. 4or, since

Regents of University of California v Bakke, have we directly addressed the use of race in

the conte#t of pulic higher education. Today, we hold that the law school has acompelling interest in attaining a diverse student ody.

The law school's educational 6udgment that such diversity is essential to its educational

mission is one to which we defer. The law school's assessment that diversity will, in fact,

yield educational enefits is sustantiated y respondents and their amici. Mur scrutiny of


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the interest asserted y the law school is no less strict for taking into account comple#

educational 6udgments in an area that lies primarily within the e#pertise of the university.

Mur holding today is in keeping with our tradition of giving a degree of deference to auniversity's academic decisions, within constitutionally prescried limits. SeeRegents of

University of Michigan v .!ing($%*5+ ) -S &$ at &&5BBoard of C*rators of

University of Misso*ri v oro!it/($%)*+ 35 -S )* at %, n BRegents of University ofCalifornia v Bakke($%)*+ 3* -S &5 at 3$%, n 53 (opinion of 1owell A+.

Ge have long recognised that, given the important purpose of pulic education and the

e#pansive freedoms of speech and thought associated with the university environment,universities occupy a special niche in our constitutional tradition. See eg %ieman v

Updegraff($%5&+ 3 -S $*3 at $%5 (rankfurter A, concurring+B S!ee/y v Ne!

ampshire($%5)+ 35 -S &3 at &50B Shelton v "*cker($%0+ 3 -S )% at *)B

'eyishian v Board of Regents of University of State of Ne! (ork($%)+ 3*5 -S 5*% at03. In announcing the principle of student ody diversity as a compelling state interest,

1owell A invoked our cases recognising a constitutional dimension, grounded in the first

amendment, of educational autonomyL 'The freedom of a university to make its own

6udgments as to education includes the selection of its student ody.'Regents ofUniversity of California v Bakke($%)*+ 3* -S &5 at 3$&. rom this premise, 1owell A

reasoned that y claiming 'the right to select those students who will contriute the mostto the 7roust e#change of ideas8', a university 'seeks to achieve a goal that is of

paramount importance in the fulfillment of its mission' (($%)*+ 3* -S &5 at 3$3

(/uoting'eyishian v Board of Regents of University of State of Ne! (ork($%)+3*5 -S 5*% at 03++. Mur conclusion that the law school has a compelling interest in a

diverse student ody is informed y our view that attaining a diverse student ody is at

the heart of the law school's proper institutional mission, and that 'good faith' on the part

of a university is 'presumed' asent 'a showing to the contrary' (($%)*+ 3* -S &5 at3$*93$%+.

2s part of its goal of 'assemling a class that is oth e#ceptionally academically /ualified

and roadly diverse', the law school seeks to 'enroll a 7critical mass8 of minoritystudents'. ;rief for respondents ;ollinger et al at $3. The law school's interest is not

simply 'to assure within its student ody some specified percentage of a particular group

merely ecause of its race or ethnic origin' (Regents of University of California v Bakke($%)*+ 3* -S &5 at 30) (opinion of 1owell A++. That would amount to outright racial

alancing, which is patently unconstitutional.Freeman v +itts($%%&+ 503 -S ) at %

('acial alance is not to e achieved for its own sake'+BRichmond v JA Croson Co

($%*%+ ** -S % at 50). ather, the law school's concept of critical mass is defined yreference to the educational enefits that diversity is designed to produce.

These enefits are sustantial. 2s the district court emphasised, the law school's

admissions policy promotes 'cross!racial understanding', helps to reak down racialstereotypes, and 'enales


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e#pert studies and reports entered into evidence at trial, numerous studies show that

student ody diversity promotes learning outcomes, and 'etter prepares students for an

increasingly diverse workforce and society, and etter prepares them as professionals'.;rief for 2merican @ducational esearch 2ssociation et al as amici curiae at 3B see eg

;owen N ;ok "he Shape of the River($%%*+B0iversity ChallengedL.vidence on the

$mpact of Affirmative Action(&00$+B Compelling $nterestL.#amining the .vidence onRacial 0ynamics in Colleges and Universities(&003+.

These enefits are not theoretical ut real, as ma6or 2merican usinesses have made clear

that the skills needed in today's increasingly gloal marketplace can only e developedthrough e#posure to widely diverse people, cultures, ideas, and viewpoints. ;rief for 3"

et al as amici curiae at 5B rief for eneral "otors ?orp as amici curiae at 39. Ghat is

more, high!ranking retired officers and civilian leaders of the -nited States military assert

that, 'ased on


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handful of these schools accounts for &5 of the $00 -nited States Senators, ) -nited

States ?ourts of 2ppeals 6udges, and nearly &00 of the more than 00 -nited States

istrict ?ourt 6udges (at +.In order to cultivate a set of leaders with legitimacy in the eyes of the citiFenry, it is

necessary that the path to leadership e visily open to talented and /ualified individuals

of every race and ethnicity. 2ll memers of our heterogeneous society must haveconfidence in the openness and integrity of the educational institutions that provide this

training. 2s we have recognised, law schools 'cannot e effective in isolation from the

individuals and institutions with which the law interacts'. See S!eatt v +ainter($%50+33% -S &% at 3. 2ccess to legal education (and thus the legal profession+ must e

inclusive of talented and /ualified individuals of every race and ethnicity, so that all

memers of our heterogeneous society may participate in the educational institutions that

provide the training and education necessary to succeed in 2merica.The law school does not premise its need for critical mass on 'any elief that minority

students always (or even consistently+ e#press some characteristic minority viewpoint on

any issue'. ;rief for respondent ;ollinger et al at 30. To the contrary, diminishing the

force of such stereotypes is oth a crucial part of the law school's mission, and one that itcannot accomplish with only token numers of minority students. Aust as growing up in a

particular region or having particular professional e#periences is likely to affect anindividual's views, so too is one's own, uni/ue e#perience of eing a racial minority in a

society, like our own, in which race unfortunately still matters. The law school has

determined, ased on its e#perience and e#pertise, that a 'critical mass' of under!represented minorities is necessary to further its compelling interest in securing the

educational enefits of a diverse student ody.

B

@ven in the limited circumstance when drawing racial distinctions is permissile tofurther a compelling state interest, government is still 'constrained in how it may pursue

that endL The means chosen to accomplish the


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individual from comparison with all other candidates for the availale seats' (($%)*+ 3*

-S &5 at 3$)+. In other words, an admissions programme must e 'fle#ile enough to

consider all pertinent elements of diversity in light of the particular /ualifications of eachapplicant, and to place them on the same footing for consideration, although not

necessarily according them the same weight'.

Ge find that the law school's admissions programme ears the hallmarks of a narrowlytailored plan. 2s 1owell A made clear inRegents of University of California v Bakke, truly

individualised consideration demands that race e used in a fle#ile, non!mechanical

way. It follows from this mandate that universities cannot estalish /uotas for memersof certain racial groups or put memers of those groups on separate admissions tracks.

See ($%)*+ 3* -S &5 at 3$593$. 4or can universities insulate applicants who elong

to certain racial or ethnic groups from the competition for admission. -niversities can,

however, consider race or ethnicity more fle#ily as a 'plus' factor in the conte#t ofindividualised consideration of each and every applicant.

Ge are satisfied that the law school's admissions programme, like the :arvard plan

descried y 1owell A, does not operate as a /uota. 1roperly understood, a '/uota' is a

programme in which a certain fi#ed numer or proportion of opportunities are 'reservede#clusively for certain minority groups'.Richmond v JA Croson Co($%*%+ ** -S % at

% (plurality opinion+. Ouotas 'impose a fi#ed numer or percentage which must eattained, or which cannot e e#ceeded', Sheet Metal %orkers v ..2C($%*+ )* -S &$

at %5 (M'?onnor A, concurring in part and dissenting in part+, and 'insulate the individual

from comparison with all other candidates for the availale seats'.Regents of University

of California v Bakke($%)*+ 3* -S &5 at 3$) (opinion of 1owell A+. In contrast, 'a

permissile goal K re/uires only a good!faith effort K to come within a range

demarcated y the goal itself', Sheet Metal %orkers v ..2C($%*+ )* -S &$ at %5,

and permits consideration of race as a 'plus' factor in any given case while still ensuringthat each candidate 'competes with all other /ualified applicants', Johnson v

"ransportation Agency,Santa Clara Cty($%*)+ *0 -S $ at 3*.

1owell A's distinction etween the medical school's rigid $!seat /uota and :arvard'sfle#ile use of race as a 'plus' factor is instructive. :arvard certainly had minimumgoals

for minority enrolment, even if it had no specific numer firmly in mind. SeeRegents of

University of California v Bakke($%)*+ 3* -S &5 at 3&3 (opinion of 1owell A+ ('$0 or&0 lack students could not egin to ring to their classmates and to each other the

variety of points of view, ackgrounds and e#periences of lacks in the -nited States'+.

Ghat is more, 1owell A flatly re6ected the argument that :arvard's programme was 'the

functional e/uivalent of a /uota' merely ecause it had some 'plus' for race, or gavegreater 'weight' to race than to some other factors, in order to achieve student ody

diversity (($%)*+ 3* -S &5 at 3$)93$*+.

The law school's goal of attaining a critical mass of under!represented minority studentsdoes not transform its programme into a /uota. 2s the :arvard plan descried y 1owell

A recognised, there is of course 'some relationship etween numers and achieving the

enefits to e derived from a diverse student ody, and etween numers and providing areasonale environment for those students admitted' (($%)*+ 3* -S &5 at 3&3+. 'Some

attention to numers', without more, does not transform a fle#ile admissions system into

a rigid /uota. 4or, as Hennedy A posits, does the law school's consultation of the 'daily

reports', which keep track of the racial and ethnic composition of the class (as well as of


13/45

residency and gender+, 'suggest there was no further attempt at individual review save for

race itself' during the final stages of the admissions process. See elow (dissenting

opinion+. To the contrary, the law school's admissions officers testified withoutcontradiction that they never gave race any more or less weight ased on the information

contained in these reports. ;rief for respondents ;ollinger et al at 3, n )0 (citing app in

nos 0$!$) and 0$!$5$ (?2+, p )33+. "oreover, as Hennedy A concedes, see elow,etween $%%3 and &000, the numer of 2frican9 2merican, atino, and 4ative!2merican

students in each class at the law school varied from $3>5 to &0>$J, a range inconsistent

with a /uota.The ?hief Austice elieves that the law school's policy conceals an attempt to achieve

racial alancing, and cites admissions data to contend that the law school discriminates

among different groups within the critical mass. See elow (dissenting opinion+. ;ut, as

the ?hief Austice concedes, the numer of under!represented minority students whoultimately enrol in the law school differs sustantially from their representation in the

applicant pool and varies consideraly for each group from year to year. See elow

(dissenting opinion+.

That a race!conscious admissions programme does not operate as a /uota does not, yitself, satisfy the re/uirement of individualised consideration. Ghen using race as a 'plus'

factor in university admissions, a university's admissions programme must remainfle#ile enough to ensure that each applicant is evaluated as an individual and not in a

way that makes an applicant's race or ethnicity the defining feature of his or her

application. The importance of this individualised consideration in the conte#t of a race!conscious admissions programme is paramount. SeeRegents of University of California vBakke($%)*+ 3* -S &5 at 3$*, n 5& (opinion of 1owell A+ (identifying the 'denial K of

the right to individualiFed consideration' as the 'principal evil' of the medical school's

admissions programme+.:ere, the law school engages in a highly individualised, holistic review of each

applicant's file, giving serious consideration to all the ways an applicant might contriute

to a diverse educational environment. The law school affords this individualisedconsideration to applicants of all races. There is no policy, either de 6ure or de facto, of

automatic acceptance or re6ection ased on any single 'soft' variale. -nlike the

programme at issue in Grat/vBollinger&003 -S e#is *0$, the law school awards nomechanical, predetermined diversity 'onuses' ased on race or ethnicity. See aove

(distinguishing a race!conscious admissions programme that automatically awards &0

points ased on race from the :arvard plan, which considered race ut 'did not

contemplate that any single characteristic automatically ensured a specific andidentifiale contriution to a university's diversity'+. ike the :arvard plan, the law

school's admissions policy 'is fle#ile enough to consider all pertinent elements of

diversity in light of the particular /ualifications of each applicant, and to place them onthe same footing for consideration, although not necessarily according them the same

weight'.Regents of University of California v Bakke($%)*+ 3* -S &5 at 3$) (opinion

of 1owell A+.Ge also find that, like the :arvard plan 1owell A referenced inRegents of University of

California v Bakke, the law school's race!conscious admissions programme ade/uately

ensures that all factors that may contriute to student ody diversity are meaningfully

considered alongside race in admissions decisions. Gith respect to the use of race itself,


14/45

all under!represented minority students admitted y the law school have een deemed

/ualified. ;y virtue of our nation's struggle with racial ine/uality, such students are oth

likely to have e#periences of particular importance to the law school's mission, and lesslikely to e admitted in meaningful numers on criteria that ignore those e#periences (see

app at $&0+.

The law school does not, however, limit in any way the road range of /ualities ande#periences that may e considered valuale contriutions to student ody diversity. To

the contrary, the $%%& policy makes clear 'there are many possile ases for diversity

admissions', and provides e#amples of admittees who have lived or travelled widelyaroad, are fluent in several languages, have overcome personal adversity and family

hardship, have e#ceptional records of e#tensive community service, and have had

successful careers in other fields (at $$*9$$%+. The law school seriously considers each

'applicant's promise of making a notale contriution to the class y way of a particularstrength, attainment, or characteristicEeg an unusual intellectual achievement,

employment e#perience, non!academic performance, or personal ackground' (at *39*+.

2ll applicants have the opportunity to highlight their own potential diversity

contriutions through the sumission of a personal statement, letters of recommendation,and an essay descriing the ways in which the applicant will contriute to the life and

diversity of the law school.Ghat is more, the law school actually gives sustantial weight to diversity factors esides

race. The law school fre/uently accepts non!minority applicants with grades and test

scores lower than under!represented minority applicants (and other non!minorityapplicants+ who are re6ected. See rief for respondents ;ollinger et al at $0B app at $&$9

$&&. This shows that the law school seriously weighs many other diversity factors esides

race that can make a real and dispositive difference for non!minority applicants as well.

;y this fle#ile approach, the law school sufficiently takes into account, in practice aswell as in theory, a wide variety of characteristics esides race and ethnicity that

contriute to a diverse student ody. Hennedy A speculates that 'race is likely outcome

determinative for many memers of minority groups' who do not fall within the upperrange of S2T scores and grades. See elow (dissenting opinion+. ;ut the same could e

said of the :arvard plan discussed approvingly y 1owell A inRegents of University of

California v Bakke, and indeed of any plan that uses race as one of many factors. See($%)*+ 3* -S &5 at 3$ ('Ghen the ?ommittee on 2dmissions reviews the large middle

group of applicants who are 7admissile8 and deemed capale of doing good work in

their courses, the race of an applicant may tip the alance in his favor'+.

The petitioner and the -nited States argue that the law school's plan is not narrowlytailored ecause race!neutral means e#ist to otain the educational enefits of student

ody diversity that the law school seeks. Ge disagree. 4arrow tailoring does not re/uire

e#haustion of every conceivale race!neutral alternative. 4or does it re/uire a universityto choose etween maintaining a reputation for e#cellence or fulfilling a commitment to

provide educational opportunities to memers of all racial groups. See %ygant v Jackson

Bd of .d($%*+ ) -S &) at &*0, n (alternatives must serve the interest 'aout aswell'+BRichmond v JA Croson Co($%*%+ ** -S % at 50%95$0 (plurality opinion+ (city

had a 'whole array of race!neutral' alternatives ecause changing re/uirements 'would

have


15/45

that will achieve the diversity the university seeks. See ($%*%+ ** -S % at 50) (set!

aside plan not narrowly tailored where 'there does not appear to have een any

consideration of the use of race!neutral means'+B %ygant v Jackson Bd of .d($%*+ )-S &) at &*0, n (narrow tailoring 're/uires consideration' of 'lawful alternative and

less restrictive means'+.

Ge agree with the ?ourt of 2ppeals that the law school sufficiently considered workalerace!neutral alternatives. The district court took the law school to task for failing to

consider race!neutral alternatives such as 'using a lottery system' or 'decreasing the

emphasis for all applicants on undergraduate 12 and S2T scores' (app to pet for cert at&5$a+. ;ut these alternatives would re/uire a dramatic sacrifice of diversity, the academic

/uality of all admitted students, or oth.

The law school's current admissions programme considers race as one factor among

many, in an effort to assemle a student ody that is diverse in ways roader than race.;ecause a lottery would make that kind of nuanced 6udgment impossile, it would

effectively sacrifice all other educational values, not to mention every other kind of

diversity. So too with the suggestion that the law school simply lower admissions

standards for all students, a drastic remedy that would re/uire the law school to ecome amuch different institution and sacrifice a vital component of its educational mission. The

-nited States advocates 'percentage plans', recently adopted y pulic undergraduateinstitutions in Te#as, lorida, and ?alifornia to guarantee admission to all students aove

a certain class!rank threshold in every high school in the state (rief for -nited States as

amicus curiae at $9$*+. The -nited States does not, however, e#plain how such planscould work for graduate and professional schools. "oreover, even assuming such plans

are race!neutral, they may preclude the university from conducting the individualised

assessments necessary to assemle a student ody that is not 6ust racially diverse, ut

diverse along all the /ualities valued y the university. Ge are satisfied that the lawschool ade/uately considered race!neutral alternatives currently capale of producing a

critical mass without forcing the law school to aandon the academic selectivity that is

the cornerstone of its educational mission.Ge acknowledge that 'there are serious prolems of 6ustice connected with the idea of

preference itself'.Regents of University of California v Bakke($%)*+ 3* -S &5 at &%*

(opinion of 1owell A+. 4arrow tailoring, therefore, re/uires that a race!consciousadmissions programme not unduly harm memers of any racial group. @ven remedial

race!ased governmental action generally 'remains su6ect to continuing oversight to

assure that it will work the least harm possile to other innocent persons competing for

the enefit' (($%)*+ 3* -S &5 at 30*+. To e narrowly tailored, a race!consciousadmissions programme must not 'unduly urden individuals who are not memers of the

favored racial and ethnic groups'.Metro Broadcasting $nc v FCC($%%0+ %) -S 5) at

30 (M'?onnor A, dissenting+.Ge are satisfied that the law school's admissions programme does not. ;ecause the law

school considers 'all pertinent elements of diversity', it can (and does+ select non!minority

applicants who have greater potential to enhance student ody diversity over under!represented minority applicants. SeeRegents of University of California v Bakke($%)*+

3* -S &5 at 3$) (opinion of 1owell A+. 2s 1owell A recognised inRegents of

University of California v Bakke($%)*+ 3* -S &5 at 3$*, so long as a race!conscious


16/45

admissions programme uses race as a 'plus' factor in the conte#t of individualised

consideration, a re6ected applicantE

'will not have een foreclosed from all consideration for that seat simply ecause he wasnot the right color or had the wrong surname K :is /ualifications would have een

weighed fairly and competitively, and he would have no asis to complain of une/ual

treatment under the ourteenth 2mendment.'Ge agree that, in the conte#t of its individualised in/uiry into the possile diversity

contriutions of all applicants, the law school's race!conscious admissions programme

does not unduly harm non!minority applicants.Ge are mindful, however, that '


17/45

It has een &5 years since 1owell A first approved the use of race to further an interest in

student ody diversity in the conte#t of pulic higher education. Since that time, the

numer of minority applicants with high grades and test scores has indeed increased (seeTr of Mral 2rg 3+. Ge e#pect that &5 years from now, the use of racial preferences will

no longer e necessary to further the interest approved today.

-/In summary, the e/ual protection clause does not prohiit the law school's narrowly

tailored use of race in admissions decisions to further a compelling interest in otaining

the educational enefits that flow from a diverse student ody. ?onse/uently, thepetitioner's statutory claims ased on Title CI and & -S? D$%*$ also fail. SeeRegents of

University of California v Bakke($%)*+ 3* -S &5 at &*) (opinion of 1owell A+ ('Title

CI K proscries only those racial classifications that would violate the @/ual 1rotection

?lause or the ifth 2mendment'+B General B*ilding Contractors Association $nc v+ennsylvania($%*&+ 5* -S 3)5 at 3*%93%$ (the prohiition against discrimination in

D$%*$ is co!e#tensive with the e/ual protection clause+. The 6udgment of the ?ourt of

2ppeals for the Si#th ?ircuit, accordingly, is affirmed.

It is so ordered.

G-)SBURG J *&ith &hom BR#0#R J oins+ *onurring+( The court's oservationthat race!conscious programmes 'must have a logical end point' see aove, accords with

the international understanding of the office of affirmative action. The International

?onvention on the @limination of 2ll orms of acial iscrimination (4ew Pork, )"arch $%B TS )) ($%%+ ?mnd $0*+, ratified y the -nited States in $%%, see State

ept, Treaties in orce &&9&3 (Aune $%%+, endorses 'special and concrete measures to

ensure the ade/uate development and protection of certain racial groups or individuals

elonging to them, for the purpose of guaranteeing them the full and e/ual en6oyment ofhuman rights and fundamental freedoms'. 2nne# to 2 es &$0, &0 -4 2M es

Supp (4o $+ ), -4 oc 2Q0$, art &(&+ ($%5+. ;ut such measures, the convention

instructs, 'shall in no case entail as a conse/uence the maintenance of une/ual or separaterights for different racial groups after the o6ectives for which they were taken have een

achieved'B see also art $(+ (similarly providing for temporally limited affirmative action+B

?onvention on the @limination of 2ll orms of iscrimination against Gomen ($*ecemer $%)%B 2 es 3Q$*0, -4 oc 2Q3Q+, art ($+ (authorising 'temporary

special measures aimed at accelerating de facto e/uality' that 'shall e discontinued when

the o6ectives of e/uality of opportunity and treatment have een achieved'+.

The court further oserves that 'it has een &5 years since 1owell A


18/45

to a law!enforced racial caste system, itself the legacy of centuries of slavery. SeeBro!n

v Board of .d*cation($%5+ 3) -S *3B cf Cooper v Aaron($%5*+ 35* -S $.

It is well documented that conscious and unconscious race ias, even rank discriminationased on race, remain alive in our land, impeding realisation of our highest values and

ideals. See eg Grat/ v Bollinger&003 -S e#is *0$ at $9 (insurg A, dissenting+B

Adarand Constr*ctors $nc v +ena($%%5+ 5$5 -S &00 at &)&9&) (insurg A,dissenting+B Hrieger '?ivil ights 1erestroikaL Intergroup elations after 2ffirmative

2ction' ($%%*+ * ?alif ev $&5$, $&)9$&%$, $303. 2s to pulic education, data for

the years &000!&00$ show that )$>J of 2frican9 2merican children and )>3J of:ispanic children attended a school in which minorities made up a ma6ority of the student

ody. See rankenerg, ee N MrfieldA M*ltiracial Society !ith Segregated SchoolsL

Are %e &osing the 0reamR p (Aan &003+,

httpLQQwww.civilrightspro6ect.harvard.eduQresearchQ reseg03Q2reGeosingtheream.pdf(as visited $ Aune &003, and availale in the clerk of court's case file+. 2nd schools in

predominantly minority communities lag far ehind others measured y the educational

resources availale to them. See at $$B rief for 4ational -ran eague et al as amici

curiae at $$9$& (citing eneral 2ccounting Mffice+er3+*pil Spending 0ifferencesBet!een Selected $nner City and S*1*r1an Schools ,aried 1y Metropolitan Area (&00&+,

$)+. :owever strong the pulic's desire for improved education systems may e, see :artN Teeter '2 4ational 1riorityL 2mericans Speak on Teacher Ouality' (&00&+ & at $$

(pulic opinion research conducted for @ducational Testing Service+B the 4o ?hild eft

;ehind 2ct of &00$, 1u $0)!$$0, $$5 Stat $&5, &0 -S? 2 D)&3$ (&003 Supp1amphlet+, it remains the current reality that many minority students encounter markedly

inade/uate and une/ual educational opportunities. espite these ine/ualities, some

minority students are ale to meet the high threshold re/uirements set for admission to

the country's finest undergraduate and graduate educational institutions. 2s lower schooleducation in minority communities improves, an increase in the numer of such students

may e anticipated. rom today's vantage point, one may hope, ut not firmly forecast,

that over the ne#t generation's span, progress toward non!discrimination and genuinelye/ual opportunity will make it safe to sunset affirmative action. (2s the court e#plains,

the admissions policy challenged here survives review under the standards stated in

Adarand Constr*ctors $nc v +ena($%%5+ 5$5 -S &00,Richmond v JA Croson Co($%*%+** -S %, and 1owell A's opinion inRegents of University of California v Bakke($%)*+

3* -S &5. This case therefore does not re/uire the court to revisit whether all

governmental classifications y race, whether designed to enefit or to urden a

historically disadvantaged group, should e su6ect to the same standard of 6udicialreview. ?f Grat/ v Bollinger&003 -S e#is *0$ at 95 (insurg A, dissenting+B

Adarand Constr*ctors $nc v +ena($%%5+ 5$5 -S &00 at &), n * (insurg A, dissenting+.

4or does this case necessitate reconsideration whether interests other than 'student odydiversity', see aove, rank as sufficiently important to 6ustify a race!conscious

government programme. ?f Grat/ v Bollinger&003 -S e#is *0$ at 5 (insurg A,

dissenting+BAdarand Constr*ctors $nc v +ena($%%5+ 5$5 -S &00 at &)39&) (insurgA, dissenting+.+

R#1)2U-S! CJ *&ith &hom SC.-., K#))#30 and !1O$.S JJ oin+

*dissenting+( - agree &ith the ourt that, 'in the limited irumstane &hen dra&ing


19/45

raial distintions is permissible', the government must ensure that its means are

narro&ly tailored to ahieve a ompelling state interest( See above4 see also 5ullilove

v Klut6ni7 *89:;+


20/45

and re!e#amine stereotypes (see app to pet for cert at &$$aB rief for respondents

;ollinger et al at &+. These o6ectives indicate that 'critical mass' relates to the siFe of the

student ody (at 5 (claiming that the law school has enrolled 'critical mass', or 'enoughminority students to provide meaningful integration of its classrooms and residence

halls'++. The respondents further claim that the law school is achieving 'critical mass' (at

(noting that the law school's goals have een 'greatly furthered y the presence of K a7critical mass8 of' minority students in the student ody++.

In practice, the law school's programme ears little or no relation to its asserted goal of

achieving 'critical mass'. The respondents e#plain that the law school seeks to accumulatea 'critical mass' of eachunder!represented minority group (see eg at %, n )% ('The aw

School's K current policy K provides a special commitment to enrolling a 7critical

mass8 of 7:ispanics8'++. ;ut the record demonstrates that the law school's admissions

practices with respect to these groups differ dramatically and cannot e defended underany consistent use of the term 'critical mass'.

rom $%%5 through &000, the law school admitted etween $,$30 and $,3$0 students. Mf

those, etween $3 and $% were 4ative 2merican, etween %$ and $0* were 2frican9

2mericans, and etween ) and 5 were :ispanic. If the law school is admitting etween%$ and $0* 2frican92mericans in order to achieve 'critical mass', therey preventing

2frican92merican students from feeling 'isolated or like spokespersons for their race',one would think that a numer of the same order of magnitude would e necessary to

accomplish the same purpose for :ispanics and 4ative 2mericans. Similarly, even if all

of the 4ative 2merican applicants admitted in a given year matriculate, which the recorddemonstrates is not at all the case, how can this possily constitute a 'critical mass' of

4ative 2mericans in a class of over 350 studentsR (Indeed, during this five!year time

period, enrolment of 4ative 2merican students dropped to as low as threesuch students.

2ny assertion that such a small group constituted a 'critical mass' of 4ative 2mericans issimply asurd.+ In order for this pattern of admission to e consistent with the law

school's e#planation of 'critical mass', one would have to elieve that the o6ectives of

'critical mass' offered y respondents are achieved with only half the numer of :ispanicsand one!si#th the numer of 4ative 2mericans as compared to 2frican92mericans. ;ut

respondents offer no race!specific reasons for such disparities. Instead, they simply

emphasise the importance of achieving 'critical mass', without any e#planation of whythat concept is applied differently among the three under!represented minority groups.

These different numers, moreover, come only as a result of sustantially different

treatment among the three under!represented minority groups, as is apparent in an

e#ample offered y the law school and highlighted y the courtL The school asserts that it'fre/uently accepts nonminority applicants with grades and test scores lower than under!

represented minority applicants (and other nonminority applicants+ who are re6ected', see

aove (citing rief for respondents ;ollinger et al at $0+. Specifically, the law schoolstates that 'si#ty!nine minority applicants were re6ected etween $%%5 and &000 with at

least a 3>5


21/45

etween a $5%9$0 on the S2T and earned a 12 of 3>00 or higher applied for

admission and only two were admitted (app at &009&0$+. "eanwhile, $& 2frican9

2mericans in the same range of /ualifications applied for admission and all $& wereadmitted (at $%*+. ikewise, that same year, $ :ispanics who scored etween a $5$!$53

on the S2T and earned a 3>00 or higher applied for admission and only $ of those

applicants was admitted (at &009&0$+. &3 similarly /ualified 2frican92mericans appliedfor admission and $ were admitted (at $%*+.

These statistics have a significant earing on the petitioner's case. The respondents have

never offered any race!specific arguments e#plaining why significantly more individualsfrom one under!represented minority group are needed in order to achieve 'critical mass'

or further student ody diversity. They certainly have not e#plained why :ispanics, who

they have said are among 'the groups most isolated y racial arriers in our country',

should have their admission capped out in this manner. ;rief for the respondents;ollinger et al at 50. True, the petitioner is neither :ispanic nor 4ative 2merican. ;ut the

law school's disparate admissions practices with respect to these minority groups

demonstrate that its alleged goal of 'critical mass' is simply a sham. The petitioner may

use these statistics to e#pose this sham, which is the asis for the law school's admissionof less /ualified under!represented minorities in preference to her. Surely strict scrutiny

cannot permit these sort of disparities without at least some e#planation.Mnly when the 'critical mass' lael is discarded does a likely e#planation for these

numers emerge. The court states that the law school's goal of attaining a 'critical mass' of

under!represented minority students is not an interest in merely 'assuring within itsstudent ody some specified percentage of a particular group merely ecause of its race

or ethnic origin'. See aove (/uotingRegents of University of California v Bakke($%)*+

3* -S &5 at 30) (opinion of 1owell A++. The court recognises that such an interest

'would amount to outright racial alancing, which is patently unconstitutional'. Seeaove. The court concludes, however, that the law school's use of race in admissions,

consistent with 1owell A's opinion inRegents of University of California v Bakke, only

pays 'some attention to numers'. See aove (/uotingRegents of University of Californiav Bakke($%)*+ 3* -S &5 at 3&3+.

;ut the correlation etween the percentage of the law school's pool of applicants who are

memers of the three minority groups and the percentage of the admitted applicants whoare memers of these same groups is far too precise to e dismissed as merely the result

of the school paying 'some attention to )J $$30 $0 %>J


22/45

$%% 3)) 3& %>3J $$)0 $0* %>&J

$%%) 3&% 3&0 %>3J $&$* $0$ *>3J

$%%* 353) 30 *>J $3$0 $03 )>%J

$%%% 300 &) )>3J $&*0 %$ )>$J

&000 33& &5% )>5J $&% %$ )>3J

0ear )umber

o% la&

shool

appliants

)umber

o%

1ispani

appliants

"erentage

o%

appliants

&ho &ere

1ispani

)umber

o%

appliants

admitted

by the la&

shool

)umber

o%

1ispani

appliants

admitted

"erentage

o%

admitted

appliants

&ho &ere

1ispani

$%%5 $) &$3 5>$J $$30 5 5>0J

$%% 3)) $* 5>$J $$)0 5 >J

$%%) 3&% $3 >*J $&$* ) 3>%J

$%%* 353) $50 >&J $3$0 55 >&J

$%%% 300 $5& >5J $&*0 * 3>*J

&000 33& $* >%J $&% 53 >&J

0ear )umber

o% la&

shool

appliants

)umber

o% )ative

.merian

appliants

"erentage

o%

appliants

&ho &ere

)ative

.merian

)umber

o%

appliants

admitted

by the la&

shool

)umber

o% )ative

.merian

appliants

admitted

"erentage

o%

admitted

appliants

&ho &ere

)ative.merian

$%%5 $) 5 $>$J $$30 $ $>&J

$%% 3)) 3$ 0>*J $$)0 $3 $>$J

$%%) 3&% 3) $>$J $&$* $% $>J

$%%* 353) 0 $>$J $3$0 $* $>J

$%%% 300 &5 0>)J $&*0 $3 $>0J

&000 33& 35 $>0J $&% $ $>$J

or e#ample, in $%%5, when %>)J of the applicant pool was 2frican92merican, %>J ofthe admitted class was 2frican92merican. ;y &000, only )>5J of the applicant pool was

2frican92merican, and )>3J of the admitted class was 2frican92merican. Thiscorrelation is striking. The respondents themselves emphasise that the numer of under!represented minority students admitted to the law school would e significantly smaller if

the race of each applicant were not considered. See app to pet for cert at &&3aB rief for

respondents ;ollinger et al at (/uoting app to pet for cert of ;ollinger et al at &%%a+.

;ut, as the e#amples aove illustrate, the measure of the decrease would differdramatically among the groups. The tight correlation etween the percentage of

applicants and admittees of a given race, therefore, must result from careful race ased


23/45

planning y the law school. It suggests a formula for admission ased on the aspirational

assumption that all applicants are e/ually /ualified academically, and therefore that the

proportion of each group admitted should e the same as the proportion of that group inthe applicant pool (see rief for respondents ;ollinger et al at 3, n )0 (discussing

admissions officers' use of 'periodic reports' to track 'the racial composition of the

developing class'++.4ot only do the respondents fail to e#plain this phenomenon, they attempt to oscure it

(at 3&, n 50 ('The aw School's minority enrollment percentages K diverged from the

percentages in the applicant pool y as much as $)>)J from $%%5!&000'++. ;ut thedivergence etween the percentages of under!represented minorities in the applicant pool

and in the enrolledclasses is not the only relevant comparison. In fact, it may not e the

most relevant comparison. The law school cannot precisely control which of its admitted

applicants decide to attend the university. ;ut it can and, as the numers demonstrate,clearly does employ racial preferences in e#tending offers of admission. Indeed, the

ostensily fle#ile nature of the law school's admissions programme that the court finds

appealing, see aove, appears to e, in practice, a carefully managed programme

designed to ensure proportionate representation of applicants from selected minoritygroups.

I do not elieve that the constitution gives the law school such free rein in the use of race.The law school has offered no e#planation for its actual admissions practices and,

une#plained, we are ound to conclude that the law school has managed its admissions

programme, not to achieve a 'critical mass', ut to e#tend offers of admission to memersof selected minority groups in proportion to their statistical representation in the applicant

pool. ;ut this is precisely the type of racial alancing that the court itself calls 'patently

unconstitutional'. See aove.

inally, I elieve that the law school's programme fails strict scrutiny ecause it is devoidof any reasonaly precise time limit on the law school's use of race in admissions. Ge

have emphasised that we will consider 'the planned duration of the remedy' in

determining whether a race!conscious programme is constitutional.F*llilove v 'l*t/nick($%*0+ * -S * at 5$0 (1owell A concurring+B see also US v +aradise($%*)+ *0 -S

$% at $)$ ('In determining whether race!conscious remedies are appropriate, we look to

several factors, including the K duration of the relief'+. Mur previous cases have re/uiredsome limit on the duration of programmes such as this ecause discrimination on the

asis of race is invidious.

The court suggests a possile &5!year limitation on the law school's current programme.

See aove. The respondents, on the other hand, remain more amiguous, e#plaining that'the aw School of course recogniFes that race!conscious programmes must have

reasonale durational limits, and the Si#th ?ircuit properly found such a limit in the aw

School's resolve to cease considering race when genuine race!neutral alternatives ecomeavailale'. ;rief for respondents ;ollinger et al at 3&. These discussions of a time limit

are the vaguest of assurances. In truth, they permit the law school's use of racial

preferences on a seemingly permanent asis. Thus, an important component of strictscrutinyEthat a programme e limited in timeEis casually suverted. The court, in an

unprecedented display of deference under our strict scrutiny analysis, upholds the law

school's programme despite its ovious flaws. Ge have said that when it comes to the use

of race, the connection etween the ends and the means used to attain them must e


24/45

precise. ;ut here the flaw is deeper than thatB it is not merely a /uestion of 'fit' etween

ends and means. :ere the means actually used are foridden y the e/ual protection

clause of the constitution.

K#))#30 J *dissenting+( !he separate opinion by "o&ell J in Regents o%

University o% Cali%ornia v Ba77e *89?:+ : US @A at >8>8: is based on thepriniple that a university admissions programme may ta7e aount o% rae as one,

non=predominant %ator in a system designed to onsider eah appliant as an

individual, provided the programme an meet the test o% strit srutiny by the

udiiary( !his is a unitary %ormulation( -% strit srutiny is abandoned or

manipulated to distort its real and aepted meaning, the ourt la7s authority to

approve the use o% rae even in this modest, limited &ay( !he opinion by "o&ell J, in

my vie&, states the orret rule %or resolving this ase( !he ourt, ho&ever, does not

apply strit srutiny( By trying to say other&ise, it undermines both the test and its

o&n ontrolling preedents(

1owell A's approval of the use of race in university admissions reflected a tradition,

grounded in the first amendment, of acknowledging a university's conception of itseducational mission.Regents of University of California v Bakke($%)*+ 3* -S &5 at

3$&93$B see aove. Mur precedents provide a asis for the court's acceptance of auniversity's considered 6udgment that racial diversity among students can further its

educational task, when supported y empirical evidence. See aove.

It is unfortunate, however, that the court takes the first part of 1owell A's rule utaandons the second. :aving approved the use of race as a factor in the admissions

process, the ma6ority proceeds to nullify the essential safeguard 1owell A insisted upon as

the precondition of the approval. The safeguard was rigorous 6udicial review, with strict

scrutiny as the controlling standard.Regents of University of California v Bakke($%)*+3* -S &5 at &%$ ('acial and ethnic distinctions of any sort are inherently suspect and

thus call for the most e#acting 6udicial e#amination'+. This court has reaffirmed,

suse/uent toRegents of University of California v Bakke, the asolute necessity of strictscrutiny when the state uses race as an operative category.Adarand Constr*ctors $nc v

+ena($%%5+ 5$5 -S &00 at && ('2ny person, of whatever race, has the right to demand

that any governmental actor su6ect to the ?onstitution 6ustify any racial classificationsu6ecting that person to une/ual treatment under the strictest 6udicial scrutiny'+B

Richmond v JA Croson Co($%*%+ ** -S % at %39%B see ($%*%+ ** -S % at 5$%

(Hennedy A, concurring in part and concurring in 6udgment+ ('2ny racial preference must

face the most rigorous scrutiny y the courts'+. The court confuses deference to auniversity's definition of its educational o6ective with deference to the implementation

of this goal. In the conte#t of university admissions the o6ective of racial diversity can

e accepted ased on empirical data known to us, ut deference is not to e given withrespect to the methods y which it is pursued. 1referment y race, when resorted to y

the state, can e the most divisive of all policies, containing within it the potential to

destroy confidence in the constitution and in the idea of e/uality. The ma6ority todayrefuses to e faithful to the settled principle of strict review designed to reflect these

concerns.

The court, in a review that is nothing short of perfunctory, accepts the -niversity of

"ichigan aw School's assurances that its admissions process meets with constitutional


25/45

re/uirements. The ma6ority fails to confront the reality of how the law school's

admissions policy is implemented. The dissenting opinion y the ?hief Austice, which I

6oin in full, demonstrates eyond /uestion why the concept of critical mass is a delusionused y the law school to mask its attempt to make race an automatic factor in most

instances and to achieve numerical goals indistinguishale from /uotas. 2n effort to

achieve racial alance among the minorities the school seeks to attract is, y the court'sown admission, 'patently unconstitutional'. See aoveB see alsoRegents of University of

California v Bakke($%)*+ 3* -S &5 at 30) (opinion of 1owell A+. It remains to point

out how critical mass ecomes inconsistent with individual consideration in some morespecific aspects of the admissions process.

2out *0 to *5J of the places in the entering class are given to applicants in the upper

range of law school admissions test scores and grades. 2n applicant with these credentials

likely will e admitted without consideration of race or ethnicity. Gith respect to theremaining $5 to &0J of the seats, race is likely outcome determinative for many

memers of minority groups. That is where the competition ecomes tight and where any

given applicant's chance of admission is far smaller if he or she lacks minority status. 2t

this point the numerical concept of critical mass has the real potential to compromiseindividual review.

The law school has not demonstrated how individual consideration is, or can e,preserved at this stage of the application process given the instruction to attain what it

calls critical mass. In fact the evidence shows otherwise. There was little deviation among

admitted minority students during the years from $%%5 to $%%*. The percentage ofenrolled minorities fluctuated only y 0>3J, from $3>5J to $3>*J. The numer of

minority students to whom offers were e#tended varied y 6ust a slightly greater

magnitude of &>&J, from the high of $5>J in $%%5 to the low of $3>J in $%%*.

The district court relied on this uncontested fact to draw an inference that the law school'spursuit of critical mass mutated into the e/uivalent of a /uota. Gr*tter v Bollinger(&00$+

$3) Supp &d *&$ at *5$. 2dmittedly, there were greater fluctuations among enrolled

minorities in the preceding years, $%*)9$%%, y as much as 5 or J. The percentage ofminority offers, however, at no point fell elow $&J, historically defined y the law

school as the ottom of its critical mass range. The greater variance during the earlier

years, in any event, does not dispel suspicion that the school engaged in racial alancing.The data would e consistent with an inference that the law school modified its target

only twice, in $%%$ (from $3J to $%J+, and then again in $%%5 (ack from &0J to $3J+.

The intervening year, $%%3, when the percentage dropped to $>5J, could e an

aerration, caused y the school's miscalculation as to how many applicants with offerswould accept or y its redefinition, made in 2pril $%%&, of which minority groups were

entitled to race!ased preference. See rief for respondents ;ollinger et al at %, n )%.

0ear "erentage o%

enrolled minority

students

$%*) $&>3J

$%** $3>J

$%*% $>J

$%%0 $3>J


26/45

$%%$ $%>$J

$%%& $%>*J

$%%3 $>5J

$%% &0>$J

$%%5 $3>5J

$%% $3>*J$%%) $3>J

$%%* $3>*J

The narrow fluctuation and raises an inference that the law school suverted individualdetermination, and strict scrutiny re/uires the law school to overcome the inference.

Ghether the o6ective of critical mass 'is descried as a /uota or a goal, it is a line drawn

on the asis of race and ethnic status', and so risks compromising individual assessment.

Regents of University of California v Bakke($%)*+ 3* -S &5 at &*% (opinion of 1owellA+. In this respect the law school programme compares unfavouraly with the e#perience

of ittle Ivy eague colleges. 2micus 2mherst ?ollege, for e#ample, informs us that the

offers it e#tended to students of 2frican92merican ackground during the period from$%%3 to &00& ranged etween *$ and $&5 out of %50 offers total, resulting in a fluctuation

from & to % matriculated students in a class of aout &5. See rief for 2mherst ?ollege

et al as amici curiae at $09$$. The law school insisted upon a much smaller fluctuation,oth in the offers e#tended and in the students who eventually enrolled, despite having a

comparale class siFe.

The law school has the urden of proving, in conformance with the standard of strict

scrutiny, that it did not utilise race in an unconstitutional way.Adarand Constr*ctors $ncv +ena($%%5+ 5$5 -S &00 at &&. 2t the very least, the constancy of admitted minority

students and the close correlation etween the racial reakdown of admitted minorities

and the composition of the applicant pool, discussed y the ?hief Austice, see aove,

re/uire the law school either to produce a convincing e#planation or to show it has takenade/uate steps to ensure individual assessment. The law school does neither.

The ovious tension etween the pursuit of critical mass and the re/uirement ofindividual review increased y the end of the admissions season. "ost of the decisions

where race may decide the outcome are made during this period. See aove. The

admissions officers consulted the daily reports which indicated the composition of theincoming class along racial lines. 2s ennis Shields, irector of 2dmissions from $%%$

to $%%, stated, 'the further


27/45

of race would then ecome divorced from individual reviewB it would e premised

instead on the numerical o6ective set y the law school.

The law school made no effort to guard against this danger. It provided no guidelines toits admissions personnel on how to reconcile individual assessment with the directive to

admit a critical mass of minority students. The admissions programme could have een

structured to eliminate at least some of the risk that the promise of individual evaluationwas not eing kept. The daily consideration of racial reakdown of admitted students is

not a feature of affirmative!action programmes used y other institutions of higher

learning. The ittle Ivy eague colleges, for instance, do not keep ongoing tallies ofracial or ethnic composition of their entering students. See rief for 2mherst ?ollege et al

as amici curiae at $0.

To e constitutional, a university's compelling interest in a diverse student ody must e

achieved y a system where individual assessment is safeguarded through the entireprocess. There is no constitutional o6ection to the goal of considering race as one modest

factor among many others to achieve diversity, ut an educational institution must ensure,

through sufficient procedures, that each applicant receives individual consideration and

that race does not ecome a predominant factor in the admissions decision!making. Thelaw school failed to comply with this re/uirement, and y no means has it carried its

urden to show otherwise y the test of strict scrutiny.The court's refusal to apply meaningful strict scrutiny will lead to serious conse/uences.

;y deferring to the law schools' choice of minority admissions programmes, the courts

will lose the talents and resources of the faculties and administrators in devising new andfairer ways to ensure individual consideration. ?onstant and rigorous 6udicial review

forces the law school faculties to undertake their responsiilities as state employees in

this most sensitive of areas with utmost fidelity to the mandate of the constitution. ean

2llan Stillwagon, who directed the law school's Mffice of 2dmissions from $%)% to $%%0,e#plained the difficulties he encountered in defining racial groups entitled to enefit

under the School's affirmative action policy. :e testified that faculty memers were

'reathtakingly cynical' in deciding who would /ualify as a memer of under!representedminorities. 2n e#ample he offered was faculty deate as to whether ?uans should e

counted as :ispanicsL Mne professor o6ected on the grounds that ?uans were

epulicans. "any academics at other law schools who are 'affirmative action's moreforthright defenders readily concede that diversity is merely the current rationale of

convenience for a policy that they prefer to 6ustify on other grounds'. Schuck '2ffirmative

2ctionL 1ast, 1resent, and uture' (&00&+ &0 Pale N 1ol ev $ at 3 (citing evinson

'iversity' (&000+ & - 1a A ?onst 5)3 at 5))95)*B uenfeld '2ffirmative 2ction'($%%)+ $0) Pale A &) at )$+. This is not to suggest the faculty at "ichigan or other

law schools do not pursue aspirations they consider laudale and consistent with our

constitutional traditions. It is ut further evidence of the necessity for scrutiny that is real,not feigned, where the corrosive category of race is a factor in decision!making.

1rospective students, the courts, and the pulic can demand that the state and its law

schools prove their process is fair and constitutional in every phase of implementation.It is difficult to assess the court's pronouncement that race!conscious admissions

programmes will e unnecessary &5 years from now. See aove. If it is intended to

mitigate the damage the court does to the concept of strict scrutiny, neither petitioners nor

other re6ected law school applicants will find solace in knowing the asic protection put


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in place y 1owell A will e suspended for a full /uarter of a century. eference is

antithetical to strict scrutiny, not consistent with it.

2s to the interpretation that the opinion contains its own self!destruct mechanism, thema6ority's aandonment of strict scrutiny undermines this o6ective. Gere the courts to

apply a searching standard to race!ased admissions schemes, that would force

educational institutions to seriously e#plore race!neutral alternatives. The court, ycontrast, is willing to e satisfied y the law school's profession of its own good faith.

The ma6ority admits as muchL 'Ge take the law school at its word that it would 7like

nothing etter than to find a race!neutral admissions formula8 and will terminate its race!conscious admissions programme as soon as practicale.' See aove (/uoting rief for

respondent ;ollinger et al at 3+.

If universities are given the latitude to administer programmes that are tantamount to

/uotas, they will have few incentives to make the e#isting minority admissions schemestransparent and protective of individual review. The unhappy conse/uence will e to

perpetuate the hostilities that proper consideration of race is designed to avoid. The

perpetuation, of course, would e the worst of all outcomes. Mther programmes do e#ist

which will e more effective in ringing aout the harmony and mutual respect among allcitiFens that our constitutional tradition has always sought. They, and not the programme

under review here, should e the model, even if the court defaults y not demanding it.It is regrettale the court's important holding allowing racial minorities to have their

special circumstances considered in order to improve their educational opportunities is

accompanied y a suspension of the strict scrutiny which was the predicate of allowingrace to e considered in the first place. If the court adicates its constitutional duty to

give strict scrutiny to the use of race in university admissions, it negates my authority to

approve the use of race in pursuit of student diversity. The constitution cannot confer the

right to classify on the asis of race even in this special conte#t asent searching 6udicialreview. or these reasons, though I reiterate my approval of giving appropriate

consideration to race in this one conte#t, I must dissent in the present case.

SC.-. J *&ith &hom !1O$.S J oins+ *onurring in part and dissenting in

part+( - oin the opinion o% the Chie% Justie( .s he demonstrates, the University o%

$ihigan a& Shool's mystial 'ritial mass' usti%iation %or its disrimination by

rae hallenges even the most gullible mind( !he admissions statistis sho& it to be a

sham to over a sheme o% raially proportionate admissions(

I also 6oin parts I9CII of Thomas A's opinion. (1art CII of Thomas A's opinion descries

those portions of the court's opinion in which I concur. See elow.+ I find particularlyunanswerale his central pointL that the allegedly 'compelling state interest' at issue here

is not the incremental 'educational enefit' that emanates from the faled 'critical mass' of

minority students, ut rather "ichigan's interest in maintaining a 'prestige' law schoolwhose normal admissions standards disproportionately e#clude lacks and other

minorities. If that is a compelling state interest, everything is.

I add the followingL The 'educational enefit' that the -niversity of "ichigan seeks toachieve y racial discrimination consists, according to the court, of 'cross!racial

understanding', see aove, and 'etter prepar


29/45

will e graded on their law school transcript (Gorks and 1lays Gell with MthersL ;+ or

tested y the ar e#aminers (OL escrie in 500 words or less your cross!racial

understanding+. or it is a lesson of life rather than lawEessentially the same lessontaught to (or rather learned y, for it cannot e 'taught' in the usual sense+ people three

feet shorter and &0 years younger than the full!grown adults at the -niversity of

"ichigan aw School, in institutions ranging from ;oy Scout troops to pulic schoolkindergartens. If properly considered an 'educational enefit' at all, it is surely not one

that is either uni/uely relevant to law school or uni/uely 'teachale' in a formal

educational setting.And thereforeL if it is appropriate for the -niversity of "ichigan awSchool to use racial discrimination for the purpose of putting together a 'critical mass' that

will convey generic lessons in socialisation and good citiFenship, surely it is no less

appropriateEindeed,partic*larlyappropriateEfor the civil service system of the state of

"ichigan to do so. There, also, those e#posed to 'critical masses' of certain races willpresumaly ecome etter 2mericans, etter "ichiganders, etter civil servants. 2nd

surely private employers cannot e criticisedEindeed, should e praisedEif they also

'teach' good citiFenship to their adult employees through a patriotic, all!2merican system

of racial discrimination in hiring. The non!minority individuals who are deprived of alegal education, a civil service 6o, or any 6o at all y reason of their skin colour will

surely understand.-nlike a clear constitutional holding that racial preferences in state educational

institutions are impermissile, or even a clear anti!constitutional holding that racial

preferences in state educational institutions are MH, today's Gr*tter6Grat/split douleheader seems perversely designed to prolong the controversy and the litigation. Some

future lawsuits will presumaly focus on whether the discriminatory scheme in /uestion

contains enough evaluation of the applicant 'as an individual', see aove, and sufficiently

avoids 'separate admissions tracks', see aove, to fall under Gr*tterrather than Grat/.Some will focus on whether a university has gone eyond the ounds of a 'good faith

effort' and has so Fealously pursued its 'critical mass' as to make it an unconstitutional de

facto /uota system, rather than merely 'a permissile goal'. See aove (/uoting SheetMetal %orkers v ..2C($%*+ )* -S &$ at %5 (M'?onnor A, concurring in part and

dissenting in part++. Mther lawsuits may focus on whether, in the particular setting at

issue, any educational enefits flow from racial diversity. (That issue was not contested inGr*tterB and while the opinion accords 'a degree of deference to a university's academic

decisions', see aove, 'deference does not imply aandonment or adication of 6udicial

review',Miller3.l v Cockrell(&003+ 53) -S 3&& at 30.+ Still other suits may challenge

the ona fides of the institution's e#pressed commitment to the educational enefits ofdiversity that immunise the discriminatory scheme in Gr*tter. (Tempting targets, one

would suppose, will e those universities that talk the talk of multiculturalism and racial

diversity in the courts ut walk the walk of trialism and racial segregation on theircampusesE through minority!only student organisations, separate minority housing

opportunities, separate minority student centres, even separate minority!only graduation

ceremonies.+ 2nd still other suits may claim that the institution's racial preferences havegone elow or aove the mystical Gr*tter!approved 'critical mass'. inally, litigation can

e e#pected on ehalf of minority groups intentionally short changed in the institution's

composition of its generic minority 'critical mass'. I do not look forward to any of these


30/45

cases. The constitution proscries government discrimination on the asis of race, and

state!provided education is no e#ception.

!1O$.S J *&ith &hom SC.-. J oins as to parts -/--+ *onurring

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