Tuesday, June 24, 2003

Excerpts from the court's two cases

The Associated Press

Grutter v. Bollinger

JUSTICE SANDRA DAY O'CONNOR, writing for the majority:

"Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. ...


UM student Ebonie Byndon smiles outside the U.S. Federal Courthouse in Cincinnati Monday.
(AP photo)
| ZOOM |

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Guest column: Colleges face new confusion with court's guidelines
Local voices: Affirmative action ruling

Full text of opinions (links courtesy USA Today and Findlaw.com)
Law school ruling
Undergraduate case
As we have explained, 'whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection'...

...Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context...

...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...

...These benefits are substantial. ... As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables (students) to better understand persons of different races"...

...In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and 'better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals'...

...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."


"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. ... Respondents, on the other hand, remain more ambiguous, explaining that 'the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available'... 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 basis. Thus, an important component of strict scrutiny - that a program be limited in time - is casually subverted.

JUSTICE CLARENCE THOMAS, in a separate dissent:

"Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today's majority:

'(I)n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! ...And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! ...(Y)our interference is doing him positive injury'...

...Like Douglass, "I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced (here). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination."

JUSTICE ANTONIN SCALIA, in a separate dissent:

"The 'educational benefit' that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of 'cross-racial understanding'... and 'better prepar(ation of) students for an increasingly diverse workforce and society'... This is not, of course, an 'educational benefit' on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law - essentially the same lesson taught to (or rather learned by, for it cannot be 'taught' in the usual sense) - people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

If properly considered an 'educational benefit' at all, it is surely not one that is either uniquely relevant to law school or uniquely 'teachable' in a formal educational setting. And therefore: If it is appropriate for the University of Michigan Law School to use racial discrimination for the purpose of putting together a 'critical mass' that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate - indeed, particularly appropriate - for the civil service system of the State of Michigan to do so... And surely private employers cannot be criticized - indeed, should be praised - if they also 'teach' good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring.

Gratz v. Bollinger


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

...The current... 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 only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups. Moreover, unlike Justice Powell's example, where the race of a 'particular black applicant' could be considered without being decisive... The 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 Fourteenth 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 underperforming 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...

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

JUSTICE DAVID SOUTER, in a separate dissent:

"The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically disadvantaged or predominantly minority high school, or at the Provost's discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on.

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

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

Howard: Some good news
Korte: Inside City Hall
Pulfer: The ambassador

Court upholds principle, strikes down quotas
Local colleges step up minority recruiting
Local college-bound teens divided on vote
Tristate: Race matters
Putting the court's ruling into context
Bush: Diversity, not quotas, won
Excerpts from the court's two cases
Editorial: For the good of diversity
Guest column: Colleges face new confusion with court's guidelines
Local voices: Affirmative action ruling

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