Why the University of Michigan Should Win in Grutter and Gratz

AuthorMichael Higginbotham; Kathleen Bergin
PositionProfessor of Law, University of Baltimore School of Law; Assistant Professor of Law, South Texas Coillege of Law

Page 697

The main arguments in this article were originally presented at the Louisiana Law Review Symposium on March 13, 2003. An excerpt from the text of this article was published in the Chronicle of Higher Education on March 28, 2003.

Professor of Law, University of Baltimore School of Law and Adjunct Professor of Law, New York University School of Law. Author of Race Law: Cases, Commentary, and Questions.

Assistant Professor of Law, South Texas College of Law. Ms. Bergin is a former Derrick Bell Fellow at New York University School of Law.

May It Please The Court .

We have demonstrated that the University of Michigan, both at its undergraduate institution and its law school, can operate flexible admissions programs, consistent with the Equal Protection Clause of the Fourteenth Amendment, that competitively weigh each applicant's academic background, life experiences, and personal characteristics, including race. By constitutional standards, their purpose of promoting a diverse student body is a compelling interest, and by considering a candidate's race along with other personal characteristics, the programs are appropriately tailored. Both as to purpose and scope, the University has satisfied its equal-protection obligation.

The University's Admissions Programs

Each year the University's undergraduate and law schools receive hundreds of applications from qualified students that exceed the number of available admission slots. After the University ranks each candidate's standardized test score and grade-point average, some applicants advance their standing based upon geographic origin, residency status, leadership skills, work experience, relationship to alumni, and other attributes. It is undisputed that such factors disproportionately increase admission rates for white students at the expense of minority students, even though some of these factors reveal nothing about a candidate's merit or potential.

To level the playing field, the University also considers an applicant's race, along with the other factors, as a means of increasing student diversity, without relying on quotas, set-asides, or separate Page 698 admission tracks. This comprehensive approach promotes enrollment of students with all types of backgrounds, including students from racial groups noticeably underrepresented on campus.

Student Diversity Is A Compelling Interest

We remind your Honors that this Court is not facing a novel question. In 1978, it was decided in Regents of the University of California v. Bakke1 that a university can properly integrate its student body by considering an applicant's racial background among a multitude of other factors when making admission decisions. At issue in Bakke was the admissions program at the medical school of the University of California at Davis that reserved 16 out of 100 entering seats exclusively for qualified minority applicants. Writing for a divided court, Justice Lewis F. Powell, Jr. concluded that the program operated as an impermissible two-track system because nonminorities could not compete for the reserved seats.2

But while rejecting Davis's unyielding emphasis on race, Justice Powell endorsed the flexible use of race alongside other factors to further the "compelling state interest" of student diversity. As a case in point, Justice Powell pointed to the policy at Harvard College which, unlike Davis, considered race "a 'plus' in a particular applicant's file," yet did not "insulate the individual from comparison with all other candidates for the available seats."3Under this plan, race might "tip the balance" in one applicant's favor, just as other variables tip the balance for a competing candidate.4 In this case, the University of Michigan takes the same approach.

For Justice Powell, Davis's plan was deficient by its means, not in its purpose. As he explained, the First Amendment embraced the underlying goal of racial diversity. Justice Powell, quoting a reference by Justice Felix Frankfurter in Sweezy v. New Hampshire, reasoned that the freedoms expressed in our Constitution have significant value to educational institutions-which, unlike profit- driven businesses, are authorized to promote an environment "conducive to speculation, experiment and creation."5 In addition, when sufficiently integrated, such an environment enables students to develop the cultural and interpersonal skills necessary to succeed Page 699 in a shrinking global community. Such reasoning persauded Justice Powell that racial diversity is "of paramount importance" in the fulfillment of a university's educational mission.6

Bakke's Precedential Value

That a majority of justices joined only part of Justice Powell's decision does not undermine the value of Bakke's reasoning. We remind your Honors that four Justices in Bakke would have upheld the Davis program, albeit under different standards of review. Furthermore, Justice Sandra Day O'Connor confirmed the significance of Bakke when she explained in Wygant v. Jackson Board of Education7 that a "state interest in the promotion of racial diversity has been found sufficiently 'compelling,' at least in the context of higher education, to support the use of racial considerations in furthering that interest."8 To ignore Bakke at this late juncture not only risks resegregating America's colleges and universities, but conflicts with this court's own commitment to stare decisis.

Indeed, like many educational institutions across the country, the University understands that diversity is most effectively achieved when admissions criteria include race.9 In that respect, Bakke falls within the line of cases that remain controlling in part because they provide a source of reference. In Allied-Bruce Terminix Companies, Incorporated v. Dobson10 and...

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