In Grutter v. Bollinger, by a majority of 5 votes to 4, the Supreme Court held that “strict scrutiny must be applied to any admissions program using racial categories or classifications.” On this basis, the Court upheld the affirmative action policy of the University of Michigan Law School in admitting a “critical mass” of minority students but added: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The case was brought by Barbara Grutter, a 43-year-old white Michigan resident who had been denied admission to the Law School in favor of minority students. Her surprise turned to “dismay” when she read a Detroit newspaper article indicating that minorities admitted to the university had lower test scores and grades than admitted whites. Justice Sandra Day O’Connor, writing for the majority, held that the U.S. Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” The university’s policy carefully avoided using any quotas, and all applicants were given the same “individualized” and “holistic” review.
Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented, claiming that the Law School’s admissions policy was actually a “disguised quota” system, which was unconstitutional because the Court had condemned quotas in the well-known Bakke case in 1978. Justice Scalia similarly called the Law School’s admissions policy “a sham to cover a scheme of racially proportionate admissions.” He stated emphatically: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”
By contrast with Grutter, in Gratz v. Bollinger a 6–3 majority of the Supreme Court struck down as unconstitutional Michigan’s points-based undergraduate admissions policy, under which minority ethnic groups were given an automatic 20-point bonus, with 100 points needed for admission. This, according to Chief Justice Rehnquist, writing for the majority, “operated as the functional equivalent of a quota running afoul” of the condemnation of quotas, as decided in Bakke. Was this system really that different from the more carefully crafted admissions policy applied in the Law School? Two of the justices who approved of the admissions policy for freshman undergraduates as well as the one for the Law School made a surprising concession. These were Justice David Souter and Justice Ruth Bader Ginsburg, who were in the majority in Grutter and in the minority in Gratz. Souter admitted that the undergraduate “college simply does by a numbered scale what the law school accomplishers in its ‘holistic’ review.” Ginsburg made a similar admission, writing that “institutions of higher education may resort to camouflage” and to “winks, nods and disguises.” But, instead of making these two liberal justices reject both the naked quota system and the disguised quota system, this realization had the opposite effect of making them approve of both, on the assumption that they were in some sense fairer than a colorblind, pure merit-based system.
These two Michigan cases aren’t the most recent high court decisions on affirmative action, but at the time of this writing, they’re still the gold standard against which such issues are measured. The long saga of Fisher v. University of Texas reached the U.S. Supreme Court twice, Fisher I in 2013 and Fisher II in 2016. In the first Fisher case, Justice Clarence Thomas characterized the University of Texas’s admissions policy as a form of racial discrimination, adding that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Calling for Grutter to be overruled, Thomas held that: “Racial discrimination is never benign … The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists … There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful. Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates … Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University … Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally … The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched … Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.”
During oral arguments in Fisher II, Justice Scalia made very much the same point as the one by Justice Thomas in Fisher I. Scalia’s remark led to an outcry from the University of Texas’s African-American students and on Twitter, but before the final decision was handed down, Scalia died, on February 13, 2016. As Justice Kagan had recused herself because of her earlier involvement with the case as solicitor general, the case was decided by only seven justices: three liberals, three conservatives, and Justice Anthony Kennedy, who sided with the liberals and wrote the majority opinion, which held that: “The race-conscious admissions program in use at the time of [Abigail Fisher’s] application is lawful under the Equal Protection Clause.” It found the university’s admissions policy similar to that approved in Grutter.
The debate on affirmative action is still ongoing and shows no sign of ending any time soon. The old issue of racial quotas has now raised its head once more. This time it’s about negative quotas, which are arguably even worse than positive quotas. Both are discriminatory and are disallowed under Gratz. The current issue concerns an allegation of the use of racial quotas to reduce the number of Asian-American students. A coalition of 64 Asian-American groups filed a complaint against Harvard University with the U.S. Departments of Education and Justice in 2015, alleging that “for Asian-American students to gain admission, they have to have SAT scores 140 points higher than white students, 270 points higher than Hispanic students, and 450 points higher than African-American students.” A nonprofit organization known as Students for Fair Admissions has filed a lawsuit on the same basis against Harvard. In August 2017, at President Trump’s prompting, it was revealed that the Department of Justice was seeking lawyers to work “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”