ADMISSIONS ON TRIAL
The Michigan Daily - Tuesday, June 24, 2003--9
l
Following are the opinions released by the U.S.
2 Supreme Court yesterday concerning the constitutionality
of race-conscious college admissions policies. The
decisions are printed in their entirety, beginning with
syllabuses, or summaries, of the decisions prepared by the
court's reporter of decisions.
GRATZ E TAL. v. BOLLINGER E TAL.
Syllabus
Petitioners Gratz and Hamacher, both of
whom are Michigan residents and Cau-
casian, applied for admission to the Univer-
sity of Michigan's (University) College of
Literature, Science, and the Arts (LSA) in
1995 and 1997, respectively. Although the
LSA considered Gratz to be well qualified
and Hamacher to be within the qualified
range, both were denied early admission
and were ultimately denied admission. In
order to promote consistency in the review
of the many applications received, the Uni-
versity's Office of Undergraduate Admis-
sions (OUA) uses written guidelines for
each academic year. The guidelines have
changed a number of times during the peri-
od relevant to this litigation. The OUA con-
siders a number of factors in making
admissions decisions, including high
school grades, standardized test scores,
high school quality, curriculum strength,
geography, alumni relationships, leader-
ship, and race. During all relevant periods,
the University has considered African-
Americans, Hispanics, and Native Ameri-
cans to be "underrepresented minorities,"
and it is undisputed that the University
admits virtually every qualified applicant
from these groups. The current guidelines
use a selection method under which every
applicant from an underrepresented racial
or ethnic minority group is automatically
awarded 20 points of the 100 needed to
guarantee admission.
Petitioners filed this class action alleging
that the University's use of racial prefer-
ences in undergraduate admissions violated
the Equal Protection Clause of the Four-
teenth Amendment, Title VI of the Civil
Rights Act of 1964, and 42 U. S. C. §1981.
They sought compensatory and punitive
damages for past violations, declaratory
relief finding that respondents violated
their rights to nondiscriminatory treat-
ment, an injunction prohibiting respondents
from continuing to discriminate on the
ti.basis of race, and an order requiring the
LSA to offer Hamacher admission as a
transfer student. The District Court granted
petitioners' motion to certify a class con-
sisting of individuals who applied for and
were denied admission to the LSA for aca-
demic year 1995 and forward and who are
members of racial or ethnic groups that
respondents treated less favorably on the
basis of race. Hamacher, whose claim was
found to challenge racial discrimination on
a classwide basis, was designated as the
class representative. On crossmotions for
summary judgment, respondents relied on
Justice Powell's principal opinion in
Regents of Univ. of Cal. v. Bakke, 438 U. S.
265, 317, which expressed the view that the
consideration of race as a factor in admis-
sions might in some cases serve a com-
pelling government interest. Respondents
contended that the LSA has just such an
interest in the educational benefits that
result from having a racially and ethnically
diverse student body and that its program is
narrowly tailored to serve that interest. The
court agreed with re-spondents as to the
LSA's current admissions guidelines and
granted them summary judgment in that
respect. However, the court also found that
the LSA's admissions guidelines for 1995
through 1998 operated as the functional
equivalent of a quota running afoul of Jus-
tice Powell's Bakke opinion, and thus grant-
ed petitioners summary judgment with
respect to respondents' admissions pro-
grams for those years. While interlocutory
appeals were pending in the Sixth Circuit,
that court issued an opinion in Grutter v.
Bollinger, post, p. __, up-holding the
admissions program used by the Universi-
ty's Law School. This Court granted certio-
rari in both cases, even though the Sixth
Circuit had not yet rendered judgment in
this one.
Held:
1. Petitioners have standing to seek
declaratory and injunctive relief. The Court
rejects JUSTICE STEVENS' contention
that, because Hamacher did not actually
apply for admission as a transfer student,
his future injury claim is at best conjectural
or hypothetical rather than real and imme-
diate. The "injury in fact" necessary to
establish standing in this type of case is the
denial of equal treatment resulting from the
imposition of the barrier, not the ultimate
inability to obtain the benefit. Northeastern
Fla. Chapter, Associated Gen. Contractors
of America v. Jacksonville, 508 U. S. 656,
666. In the face of such a barrier, to estab-
lish standing, a party need only demon-
strate that it is able and ready to perform
transfer student should the University cease
to use race in undergraduate admissions.
He therefore has standing to seek prospec-
tive relief with respect to the University's
continued use of race. Also rejected is JUS-
TICE STEVENS' contention that such use
in undergraduate transfer admissions dif-
fers from the University's use of race in
undergraduate freshman admissions, so that
Hamacher lacks standing to represent
absent class members challenging the lat-
ter. Each year the OUA produces a docu-
ment setting forth guidelines for those
seeking admission to the LSA, including
freshman and transfer applicants. The
transfer applicant guidelines specifically
cross-reference factors and qualifications
considered in assessing freshman appli-
cants. In fact, the criteria used to determine
whether a transfer applicant will contribute
to diversity are identical to those used to
evaluate freshman applicants. The only dif-
ference is that all under-represented minor-
ity freshman applicants receive 20 points
and "virtually" all who are minimally qual-
ified are admitted, while "generally" all
minimally qualified minority transfer
applicants are admitted outright. While this
difference might be relevant to a narrow
tailoring analysis, it clearly has no effect
on petitioners' standing to challenge the
University's use of race in undergraduate
admissions and its assertion that diversity
is a compelling state interest justify-ing its
consideration of the race of its undergradu-
ate applicants. See General Telephone Co.
of Southwest v. Falcon, 457 U. S. 147, 159;
Blum v. Yaretsky, 457 U. S. 991, distin-
guished. The District Court's carefully con-
sidered decision to certify this class action
is correct. Cf. Coopers & Lybrand v.
Livesay, 437 U. S. 463, 469. Hamacher's
personal stake, in view of both his past
injury and the potential injury he faced at
the time of certification, demonstrates that
he may maintain the action. Pp. 11-20.
2. Because the University's use of race in
its current freshman admissions policy is
not narrowly tailored to achieve respon-
dents' asserted interest in diversity, the pol-
icy violates the Equal Protection Clause.
For the reasons set forth in Grutter v.
Bollinger, post, at 15-21, the Court has
today rejected petitioners' argument that
diversity cannot constitute a compelling
state interest. However, the Court finds that
the University's current policy, which auto-
matically distributes 20 points, or one-fifth
of the points needed to guarantee admis-
sion, to every single "underrepresented
minority" applicant solely because of race,
is not narrowly tailored to achieve educa-
tional diversity. In Bakke, Justice Powell
explained -his view that it would be permis-
sible for a university to employ an admis-
sions program in which "race or ethnic
background may be deemed a 'plus' in a
par-ticular applicant's file." 438 U. S., at
317. He emphasized, however, the impor-
tance of considering each particular appli-
cant as an indi-vidual, assessing all of the
qualities that individual possesses, and in
turn, evaluating that individual's ability to
contribute to the unique setting of higher
education. The admissions program Justice
Powell described did not contemplate that
any single characteristic auto-matically
ensured a specific and identifiable contri-
bution to a university's diversity. See id., at
315. The current LSA policy does not pro-
vide the individualized consideration Jus-
tice Powell contemplated. The only
consideration that accompanies the 20-
point automatic dis-tribution to all appli-
cants from underrepresented minorities is a
factual review to determine whether an
individual is a member of one of these
minority groups. Moreover, unlike Justice
Powell's example, where the race of a "par-
ticular black applicant" could be consid-
ered without being decisive, see id., at 317,
the LSA's 20-point distribution has the
effect of making "the factor of race .. .
decisive" for virtually every minimally
qualified underrepresented minority appli-
cant, ibid. The fact that the LSA has creat-
ed the possibility of an applicant's file
being flagged for individualized considera-
tion only emphasizes the flaws of the Uni-
versity's system as a whole when compared
to that described by Justice Powell. The
record does not reveal precisely how many
applications are flagged, but it is undisput-
ed that such consideration is the exception
and not the rule in the LSA's program.
Also, this individualized review is only
provided after admissions counselors auto-
matically distribute the University's version
of a "plus" that makes race a decisive fac-
tor for virtually every minimally qualified
employ whatever means it desires to
achieve diversity without regard to the lim-
its imposed by strict scrutiny. Pp. 20-27.
3. Because the University's use of race in
its current freshman admissions policy vio-
lates the Equal Protection Clause, it also
violates Title VI and §1981. See, e.g.,
Alexander v. Sandoval, 532 U. S. 275, 281;
General Building Contractors Assn. v.
Pennsylvania, 458 U. S. 375, 389-390.
Accordingly, the Court reverses that por-
tion of the District Court's decision granti-
ng respondents summary judgment with
respect to liability. Pp. 27-28.
Reversed in part and remanded.
CHIEF JUSTICE WILLIAM REHN-
QUIST. delivered the opinion of the
Court, in which JUSTICES SANDRA
DAY O'CONNOR, ANTONIN SCALIA,
ANTHONY KENNEDY, AND
CLARENCE THOMAS joined. O'CON-
NOR filed a concurring opinion, In
which JUSTICE STEPHEN BREYER
joined In part. THOMAS filed a con-
curring opinion. BREYER filed an
opinion concurring in the judgment.
JUSTICE JOHN PAUL STEVENS filed
a dissenting opinion, in which JUS-
TICE DAVID SOUTER joined. SOUTER
filed a dissenting opinion, in which
JUSTICE RUTH BADER GINSBURG
joined as to Part II. GINSBURG
filed a dissenting opinion, In which
SOUTER joined, and in which BREY-
ER joined as to Part I.
Opinion of the Court
Chief Justice William Rehnquist deliv-
ered the opinion of the Court.
We granted certiorari in this case to
decide whether "the University of Michi-
gan's use of racial preferences in un-der-
graduate admissions violate[s] the Equal
Protection Clause of the Fourteenth
Amendment, Title VI of the Civil Rights
Act of 1964 (42U. S. C. § 2000d), or 42 U.
S. C. §1981." Brief for Petitioners i.
Because we findthat the manner iniwhich
the University considers the race of appli-
cants in its undergraduate admissions
guidelines violates these constitutional and
statutory provisions, we reverse that por-
tion of the District Court's decision uphold-
ing the guidelines.
IA
Petitioners Jennifer Gratz and Patrick
Hamacher both applied for admission to
the University of Michigan's (University)
College of Literature, Science, and the Arts
(LSA) as residents of the State of Michi-
gan. Both peti-tioners are Caucasian. Gratz,
who applied for admission for the fall of
1995, was notified in January of that year
that a final decision regarding her admis-
sion had been delayed until April. This
delay was based upon the University's
determination that, although Gratz was
"'well qualified,"' she was "'less competi-
tive than the students who ha[d] been
admitted on first review."' App. to Pet. for
Cert. 109a. Gratz was notified in April that
the LSA was unable to offer her admission.
She enrolled in the Univer-sity of Michigan
at Dearborn, from which she graduated in
the spring of 1999.
Hamacher applied for admission to the
LSA for the fall of 1997. A final decision
as to his application was also postponed
because, though his "'academic credentials
[were] in the qualified range, they [were]
not 4t the level needed for first review
admission."' Ibid. Hamacher's application
was subsequently denied in April 1997, and
he enrolled at Michigan State University.'
In October 1997, Gratz and Hamacher
filed a lawsuit in the United States District
Court for the Eastern District of Michigan
against the University of Michigan, the
LSA,2 James Duderstadt, and Lee
Bollinger.3 Petitioners' com-plaint was a
class-action suit alleging "violations and
threatened violations of the rights of the
plaintiffs and the class they represent to
equal protection of the laws under the Four-
teenth Amendment . . . , and for racial dis-
crimination in violation of 42 U. S. C.
§§1981, 1983, and 2000d et seq." App. 33.
Petitioners sought, inter alia, compensatory
and punitive damages for past violations,
declaratory relief finding that respondents
violated petitioners' "rights to nondiscrimi-
natory treatment," an injunction prohibiting
respondents from "continuing to discrimi-
nate on the basis of race in violation of the
Fourteenth Amendment," and an order
requiring the LSA to offer Hamacher
admission as a transfer student.4 Id., at 40.
sion." App. 70-71. And Hamacher, whose
claim the District Court found to challenge
a "'practice of racial discrimination perva-
sively applied on a classwide basis,"' was
designated as the class representative. Id.,
at 67, 70. The court also granted petition-
ers' motion to bifurcate the proceedings
into a liability and damages phase. Id., at
71. The liability phase was to determine
"whether [respondents'] use of race as a
factor in admissions decisions violates the
Equal Protection Clause of the Fourteenth
Amendment to the Constitution." Id., at
70.'
B
The University has changed its admis-
sions guidelines a number of times during
the period relevant to this litigation, and we
summarize the most significant of these
changes briefly. The University's Office of
Undergraduate Admissions (OUA) oversees
the LSA admissions process.6 In order to
promote consistency in the review of the
large number of applications received, the
OUA uses written guidelines for each aca-
demic year. Admissions counselors make
admissions decisions in accordance with
these guidelines.
OUA considers a number of factors in
making admissions decisions, including
high school grades, standardized test
scores, high school quality, curriculum
strength, geography, alumni relationships,
and leadership. OUA also considers race.
During all periods relevant to this litiga-
tion, the University has considered African-
Americans, Hispanics, and Native
Americans to be "underrepresented minori-
ties," and it is undisputed that the Universi-
ty admits "virtually every qualified .. .
applicant" from these groups. App. to Pet.
for Cert. 111a.
During 1995 and 1996, OUA counselors
evaluated applications according to grade
point average combined with what were
referred to as the "SCUGA" factors. These
factors included the quality of an appli-
cant's high school (S), the strength of an
applicant's high school curriculum (C), an
applicant's unusual circumstances (U), an
applicant's geographical residence (G), and
an applicant's alumni relationships (A).
After these scores were com-bined to pro-
duce an applicant's "GPA 2" score, the
reviewing admissions counselors refer-
enced a set of "Guidelines" tables, which
listed GPA 2 ranges on the vertical axis,
and American College Test/Scholastic Apti-
tude Test (ACT/SAT) scores on the hori-
zontal axis. Each table was divided into
cells that included one or more courses of
action to be taken, including admit, reject,
delay for additional information, or post-
pone for reconsideration.
In both years, applicants with the same
GPA 2 score and ACT/SAT score were sub-
ject to different admissions outcomes based
upon their racial or ethnic status.' For
example, as a Caucasian in-state applicant,
Gratz's GPA 2 score and ACT score placed
her within a cell calling for a postponed
decision on her application. An in-state or
out-of-state minority applicant with Gratz's
scores would have fallen within a cell call-
ing for admission.
In 1997, the University modified its
admissions procedure. Specifically, the for-
mula for calculating an applicant's GPA 2
score was restructured to include additional
point values under the "U" category in the
SCUGA factors. Under this new system,
applicants could receive points for under-
represented minority status, socioeconomic
disadvantage, or attendance at a high
school with a predominantly underrepre-
sented minority population, or under-repre-
sentation in the unit to which the student
was applying (for example, men who
sought to pursue a career in nursing).
Under the 1997 procedures, Hamacher's
GPA 2 score and ACT score placed him in
a cell on the in-state applicant table calling
for postponement of a final admissions
decision. An underrepresented minority
applicant placed in the same cell would
generally have been admitted.
Beginning with the 1998 academic year,
the OUA dispensed with the Guidelines
tables and the SCUGA point system in
favor of a "selection index," on which an
applicant could score a maximum of 150
points. This index was divided linearly into
ranges generally calling for admissions dis-
positions as follows: 100-150 (admit);
95-99 (admit or postpone); 90-94 (post-
pone or admit); 75-89 (delay or postpone);
74 and below (delay or reject).
Each application received points based
on high school grade point average, stan-
dardized test scores, academic quality of an
Cert. 116a.
In all application years from 1995 to
1998, the guidelines provided that qualified
applicants from underrepresented minority
groups be admitted as soon as possible in
light of the University's belief that such
applicants were more likely to enroll if
promptly notified of their admission. Also
from 1995 through 1998, the University
carefully managed its rolling admissions
system to permit consideration of certain
applications submitted later in the acadeni-
ic year through the use of "protected seats?'
Specific groups-including athletes, for-
eign students, ROTC candidates, an
underrepresented minorities-were "prj-
tected categories" eligible for these seats. A
committee called the Enrollment Working
Group (EWG) projected how many appli-
cants from each of these protected cate-
gories the University was likely to receive
after a given date and then paced admis-
sions decisions to permit full consideratio
of expected applications from these group.
If this space was not filled by qualified
candidates from the designated groups
toward the end of the admissions season, it
was then used to admit qualified candidates
remaining in the applicant pool, including
those on the waiting list.
During 1999 and 2000, the OUA used the
selection index, under which every appli-
cant from an underrepresented racial or
ethnic minority group was awarded 20
points. Starting in 1999, however, the Uni-
versity estab- lished an Admissions Review
Committee (ARC), to provide an additional
level of consideration for some applica-
tions. Under the new system, counselor)
may, in their discretion, "flag" an applica-
tion for the ARC to review after determin-
ing that the applicant (1) is academically
prepared to succeed at the University, (2)
has achieved a minimum selection index
score, and (3) possesses a quality or char-
acteristic important to the University's
composition of its freshman class, such as
high class rank, unique life experiences,
challenges, circumstances, interests or tal-
ents, socioeconomic disadvantage, and
undaerrepresenteadr-ac, ethnicity, or geogra-
phy. After reviewing "flagged" applica-
tions, the ARC determines whether to
admit, defer, or deny each applicant.
C
The parties filed crossmotions for sum-
mary judgment with respect to liabilit.
Petitioners asserted that the LSA's use of
race as a factor in admissions violates Title
VI of the Civil Rights Act of 1964, 78 Stat.
252, 42 U. S. C. §2000d, and the Equaa
Protection Clause of the Four-teentl
Amendment. Respondents relied on Justice
Powell's opinion in Regents of Univ. of Cal.
v. Bakke, 438 U. S. 265 (1978), to respond
to petitioners' arguments. As discussed i
greater detail in the Court's opinion in
Grutter v. Bollinger, post, at 10-13, Justice
Powell, in Bakke, expressed the view that
the consideration of race as a factor ip
admissions might in some cases serve a
compelling government interest. See 438 U.
S., at 317. Respondents contended that the
LSA has just such an interest in the educa-
tional benefits that result from having a
racially and ethnically diverse student body
and-that its program is narrowly tailored to
serve that interest. Respondent-intervenors
asserted that the LSA had a compelling
inter-est in remedying the University's past
and current discrimination against minori-
ties.9
The District Court began its analysis by
reviewing this Court's decision in Bakke.
See 122 F. Supp. 2d 811, 817 (ED Micli.
2001). Although -the court acknowledgeI
that no decision from this Court since
Bakke has explicitly accepted the diversity
rationale discussed by Justice Powell, se
122 F. Supp. 2d, at 820-821, it also con-
cluded that this Court had not, in the years
since Bakke, ruled out such a justification
for the use of race. 122 F. Supp. 2d, 4t
820-821. The District Court concluded that
respondents and their amici curiae had pre-
sented "solid evidence" that a racially and
ethnically diverse student body produces
significant educational benefits such that
achieving such a student body constitutes a
compelling governmental interest. See id;,
at 822-824.
The court next considered whether the
LSA's admissions guidelines were narrowly
tailored to achieve that interest. See id., .t
824. Again relying on Justice Powell's
opinion in Bakke, the District Court deter-
mined that the admissions program the
LSA began using in 1999 is a narrowly tai-
lored means of achieving the Universityls
interest in the educational benefits that