‘A Compelling Interest in a Diverse Student Body’

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Justice Sandra Day O’Connor, writing for the majority in upholding the affirmative action admissions policies at the University of Michigan’s law school (Grutter vs. Bollinger):

We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.... Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission....

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts”.... Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.


Chief Justice Rehnquist, writing for the dissent:

I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional”....

... Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.... Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.... The Court suggests a possible 25-year limitation on the Law School’s current program....

Chief Justice William H. Rehnquist, writing for the majority in striking down affirmative action admissions policies at the University of Michigan’s undergraduate school (Gratz vs. Bollinger):

[The late Justice Lewis F.] Powell’s opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual’s ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity.... Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application....

... The current ... policy does not provide such individualized consideration. The ... policy automatically distributes 20 points to every single applicant from an “underrepresented minority” group, as defined by the University.... The automatic distribution of 20 points has the effect of making “the factor of race ... decisive” for virtually every minimally qualified underrepresented minority applicant.

... We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the 14th Amendment.


Justice Ruth Bader Ginsburg, writing for the dissent:

In the wake “of a system of racial caste only recently ended” ... large disparities endure. Unemployment, poverty and access to health care vary disproportionately by race. Neighborhoods and schools remain racially divided. African American and Hispanic children are all too often educated in poverty-stricken and under-performing institutions. Adult African Americans and Hispanics generally earn less than whites with equivalent levels of education. Equally credentialed job applicants receive different receptions depending on their race. Irrational prejudice is still encountered in real estate markets and consumer transactions. “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.”

... The racial and ethnic groups to which the College accords special consideration (African Americans, Hispanics and Native Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day. There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race....