The Supreme Court Rulings in Grutter v. Bollinger and Gratz v. Bollinger: The Brave New World of Affirmative Action in the 21st Century

• Author: Karen Epermanis,Robert K. Robinson,Geralyn McClure Franklin
• DOI: 10.1177/009102600703600103
• Date: 01 March 2007
• Published date: 01 March 2007
• Subject Matter: Article

The Supreme Court

Rulings in Grutter v.

Bollinger and Gratz v.

Bollinger:

The Brave New World of

Affirmative Action in the

21st Century

By Robert K. Robinson, Ph.D., SPHR, Geralyn McClure Franklin, Ph.D., and

Karen Epermanis, Ph.D.

On June 23, 2003, the Supreme Court of the United States, in a five to four decision,

substantially altered the nature of state imposed affirmative action permissible

under the Equal Protection Clause of the Fourteenth Amendment when it held that

diversity could serve as a compelling government interest, thus justifying public

sector preferential programs. Though this ruling pertained specifically to race-

based preferential university admissions, it is likely to have wide ranging implications

for all public sector affirmative action programs. One implication may include

making it easier to justify state initiated affirmative action by diminishing the

requirement to demonstrate the remedial motive behind such action. This article

discusses the impact that the Grutter v. Bollinger and Gratz v. Bollinger decisions

are likely to have on preferential admissions policies in public higher education.

Introduction

On June 23, 2003, the Supreme Court of the United States, in a five to four deci-

sion, substantially changed the nature of state imposed affirmative action

when it held that diversity could serve as a “compelling government interest”

and thus justify public sector preferential programs. Though this ruling pertained

specifically to race-based preferential university admissions, it is likely to have wide

ranging implications for all public sector affirmative action programs. One implication

may include making it easier to justify state initiated affirmative action by diminishing

the requirement to demonstrate the remedial motive behind such action.

The purpose of this article is to investigate the Supreme Court’s Grutter v.

Bollinger1and Gratz v. Bollinger2decisions and discuss their implications for prefer-

ential admissions policies in public higher education. To ensure that the reader has a

full appreciation of the impact of the decisions, a brief review of the opposing political

Public Personnel Management Volume 36 No. 1 Spring 2007 33

views of equal treatment/opportunity is provided. Furthermore, the purposes of the

Equal Protection Clause and the history of affirmative action programs in the public

sector are outlined. A brief discussion of what was resolved by Grutter and Gratz, fol-

lowed by what was not resolved, is then detailed. Finally, the potential ramifications for

affirmative action programs beyond college admissions posed by the Grutter and Gratz

decisions are examined. But first, a synopsis of both cases is provided in order to facil-

itate the reader’s understanding of the differences between the two admissions pro-

grams, and to understand why one was upheld as constitutional and the other was not.

One University, Two Admissions Policies

University of Michigan Law School Admissions Requirements

The University of Michigan Law School used both objective and subjective criteria in

making admissions selection decisions. On the objective criteria side, the Law School

Admission Test (LSAT) score, undergraduate coursework and performance were con-

sidered. On the subjective side, consideration was given to particular strengths, attain-

ments or characteristics applicants possessed. Specific attention could be given to an

applicant’s employment experience, nonacademic performance or personal back-

ground. The stated objective for this delineation in applicants’ qualifications was “to

make the School a better and a livelier place in which to learn and to improve its serv-

ice to the profession and the public.”3Ethnic diversity was believed to be a desirable

end as the admission policy stated.

In addition to its own interest in forming a class which is strengthened by the

talents and diversity of its members, Michigan recognizes the public interest in increas-

ing the number of lawyers from groups which the faculty identifies as significantly

underrepresented in the legal profession. In particular, those who are African Ameri-

can, Mexican American, Native American or Puerto Rican and raised on the U.S. main-

land are strongly encouraged to apply.4

The challenge to these criteria occurred in 1997 when Barbara Grutter, a Cau-

casian female, alleged that she was rejected because the law school used race “as a

predominant factor, giving minority applicants a significantly greater chance of admis-

sion than students with similar credentials from disfavored racial groups.”5The Fed-

eral District Court for the Eastern District of Michigan noted that had Grutter been a

member of the favored group (African American or Hispanic), she would have been

admitted into the law school. All African American applicants with an LSAT score of

159-160 and an undergraduate grade point average of 3.00 and above were admitted,

whereas only one of 54 Asian applicants and four of 190 Caucasian applicants with

these qualifications were admitted.6The only justification proffered by the school was

that such preferences based on race and ethnicity were necessary to admit a “critical

mass” of minority students in order to achieve classroom diversity. Consequently, the

district court concluded that the law dchool’s justification for using race to assemble

a racially-diverse student population is not a compelling state interest and is, there-

fore, unconstitutional.

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