Beyond Bakke: Grutter-Gratz and the Promise of Brown

The Supreme Court’s long-awaited decisions this past summer in the Michigan affirmative action cases provided yet another landmark in the continuing controversy regarding race and education. A quarter century, almost to the day, after the Court handed down its badly splintered decision in Regents of the University of California v. Bakke,[1] the Court again concluded that universities may sometimes, but not always, give some preference to racial and ethnic minorities in deciding whom to admit. The Court, in a 5-4 decision in Grutter v. Bollinger, upheld the constitutionality of the University of Michigan Law School’s admission policy that considered race as one factor among many in achieving a diverse student body.[2] It concluded that student body diversity was a compelling interest that justified using a racial classification and that the Law School’s admissions program, which avoided any formulaic approach, was narrowly tailored to that end.[3] In the companion case, Gratz v. Bollinger, the Court held that the University of Michigan’s undergraduate admission program, which awarded minority applicants twenty percent of the total points needed for admission, violated the Equal Protection Clause.[4] The Court found that, even if diversity was a compelling interest, a conclusion Grutter imposed, a twenty percent bump based on race was not narrowly tailored.[5] The nine justices produced thirteen opinions; only Justice O’Connor joined both majority opinions.[6