SC Lawyer, Sept. 2003, #2. The Michigan cases: A relaxation of strict scrutiny or a results-oriented anomaly?.

AuthorBy Wendy J. Keefer

South Carolina Lawyer

2003.

SC Lawyer, Sept. 2003, #2.

The Michigan cases: A relaxation of strict scrutiny or a results-oriented anomaly?

South Carolina LawyerSeptember 2003The Michigan cases: A relaxation of strict scrutiny or a results-oriented anomaly?By Wendy J. KeeferThe U.S. Supreme Court has finally answered a legal question looming since at least 1978 when Justice Powell, writing for the Court in University of California Regents v. Bakke, 438 U.S. 265 (1978) - though without the endorsement of a majority of the Court - announced that diversity could be a compelling state interest that could override the 14th Amendment's prohibition of government consideration of race.

Since that time courts have struggled with whether Justice Powell's conclusion was a holding of the Court pursuant to Marks v. United States, 430 U.S. 188 (1977), which decision discussed the legal authority to be afforded plurality opinions - opinions in cases in which no single rationale for the Court's ruling commanded the support of a majority of the members of the Court. The Supreme Court, in essence, has now answered the diversity question in the affirmative. Gratz, et al. v. Bollinger, et al., Slip Op. No. 02-516 (June 23, 2003) and Grutter, et al. v. Bollinger, et al., Slip Op. No. 02-241 (June 23, 2003). Though scores of books will undoubtedly be written analyzing the Court's most recent decisions in Gratz and Grutter, this article seeks merely to discuss the general conclusions reached in those cases and the possible impact these decisions may (or may not) have in contexts outside student admissions policies.

Most certainly state colleges and universities can now rest assured - at least for the next 25 years - that some form of racial diversity can be a compelling state interest justifying the use of race as a factor in a "good faith," "individual" admissions decision.

But can race also be used by government employers as a "plus" factor in order to ensure or strive for a "critical mass" of otherwise underrepresented minority employees? The answer to this question seems less than clear.

Although of particular interest to educational institutions, it was clearly the hope of many Supreme Court observers that the cases of Gratz and Grutter would provide further guidance with regard to all forms of government affirmative action, expanding on legal principles announced since Bakke in cases such as Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) and Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). But the Court, despite the absence of clear and legitimate legal authority to do so, went to great lengths to include language that can be used to limit the Supreme Court's conclusions in Gratz and Grutter to student admissions policies only, based on some special or unique status granted to state educational institutions.

Clearly, the 14th Amendment makes no such distinction. In no way does the equal treatment guaranteed by that amendment differ based on what government official or entity is providing the treatment, preferring one race to another. The Court, one must assume, recognized the tension between the Constitution and its permission to use race as a factor in law school admissions, as the Court in Grutter made significant efforts to discuss the unique place of educational...

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