ADMISSIONS ON TRIAL The Michigan Daily - Tuesday, June 24, 2003 -19
body. Id., at 5 (claiming that the Law supra, at 323). greater magnitude of 2.2%, from the high tution must ensure, through sufficient pro-
School has enrolled "critical mass," or But the correlation between the percent- of 15.6% in 1995 to the low of 13.4% in cedures, that each applicant receives indi-
"enough minority students to provide age of the Law School's pool of applicants 1998. vidual consideration and that race does not
meaningful integration of its classrooms who are members of the three minority The District Court relied on this uncon- become a predominant factor in the admis-
and residence halls"). Respondents further groups and the percentage of the admitted tested fact to draw an inference that the sions decisionmaking. The Law School
claim that the Law School is achieving applicants who are members of these same Law School's pursuit of critical mass failed to comply with this requirement, and
"critical mass." Id., at 4 (noting that the groups is far too precise to be dismissed as mutated into the equivalent of a quota. 137 by no means has it carried its burden to
Law School's goals have been "greatly fur- merely the result of the school paying F. Supp. 2d 821, 851 (ED Mich. 2001). show otherwise by the test of strict scruti-
thered by the presence of ... a 'critical "some attention to [the] numbers." As the Admittedly, there were greater fluctuations ny.
mass' of " minority students in the student tables below show, from 1995 through 2000 among enrolled minorities in the preceding The Court's refusal to apply meaningful"
body). the percentage of admitted applicants who years, 1987-1994, by as much as 5 or 6%. strict scrutiny will lead to serious conse-
In practice, the Law School's program were members of these minority groups The percentage of minority offers, however, quences. By deferring to the law schools'
bears little or no relation to its asserted closely tracked the percentage of individu- at no point fell below 12%, historically choice of minority admissions programs,
goal of achieving "critical mass." Respon- als in the school's applicant pool who were defined by the Law School as the bottom of the courts will lose the talents and
dents explain that the Law School seeks to from the same groups. its critical mass range. The greater variance resources of the faculties and administra-
accumulate a "critical mass" of each under- For example, in 1995, when 9.7% of the during the earlier years, in any event, does tors in devising new and fairer ways to
represented minority group. See, e.g., id., applicant pool was African-American, 9.4% not dispel suspicion that the school ensure individual consideration. Constant
at 49, n. 79 ("The Law School's ... current of the admitted class was African-Ameri- engaged in racial balancing. The data and rigorous judicial review forces the law
policy. . . provide[s] a special commitment can. By 2000, only 7.5% of the applicant would be consistent with an inference that school faculties to undertake their respons-
to enrolling a 'critical mass' of 'Hispan- pool was African-American, and 7.3% of the Law School modified its target only bilities as state employees in this most sen
ics"'). But the record demonstrates that the the admitted class was African-American. twice, in 1991 (from 13% to 19%), and sitive of areas with utmost fidelity to the
Law School's admissions practices with This correlation is striking. Respondents then again in 1995 (back from 20% to mandate of the Constitution. Dean Allan
respect to these groups differ dramatically themselves emphasize that the number of on the principle that a university admis- 13%). The intervening year, 1993, when the Stillwagon, who directed the Law School's
and cannot be defended under any consis- underrepresented minority students admit- sions program may take account of race as percentage dropped to 14.5%, could be an Office of Admissions from 1979 to 1990,
tent use of the term "critical mass." ted to the Law School would be significant- one, nonpredominant factor in a system aberration, caused by the school's miscal- explained the difficulties he encountered in:
From 1995 through 2000, the Law ly smaller if the race of each applicant were designed to consider each applicant as an culation as to how many applicants with defining racial groups entitled to benefit
School admitted between 1,130 and 1,310 not considered. See App. to Pet. for Cert. individual, provided the program can meet offers would accept or by its redefinition, under the School's affirmative action poli-
students. Of those, between 1-3 and 19 were 223a; Brief for Respondents Bollinger et al. the test of strict scrutiny by the judiciary. made in April 1992, of which minority cy. He testified that faculty members were
Native American, between 91 and 108 were 6 (quoting App. to Pet. for Cert. of 438 U. S. 265, 289-291, 315-318 (1978). groups were entitled to race-based prefer- "breathtakingly cynical" in deciding who
African-Americans, and between 47 and 56 Bollinger et al. 299a). But, as the examples This is a unitary formulation. If strict ence. See Brief for Respondents Bollinger would qualify as a member of underrepre-
were Hispanic. If the Law School is admit- above illustrate, the measure of the scrutiny is abandoned or manipulated to et al. 49, n. 79. sented minorities. An example he offered
ting between 91 and 108 African-Ameri- decrease would differ dramatically among distort its real and accepted meaning, the Year Percentage of enrolled was faculty debate as to whether Cubans
cans in order to achieve "critical mass," the groups. The tight correlation between Court lacks authority to approve the use of minority students should be counted as Hispanics: One pro-
thereby preventing African-American stu- the percentage of applicants and admittees race even in this modest, limited way. The 1987 12.3% fessor objected on the grounds that Cubans
dents from feeling "isolated or like of a given race, therefore, must result from opinion by Justice Powell, in my view, 1988 13.6% were Republicans. Many academics at other
spokespersons for their race," one would careful race based planning by the Law states the correct rule for resolving this 1989 14.4% law schools who are "affirmative action's
think that a number of the same order of School. It suggests a formula for admission case. The Court, however, does not apply 1990 13.4% more forthright defenders readily concede,
magnitude would be necessary to accom- based on the aspirational assumption that strict scrutiny. By trying to say otherwise, 1991 19.1% that diversity is merely the current rational
plish the same purpose for Hispanics and all applicants are equally qualified academ- it undermines both the test and its own con- 1992 19.8% of convenience for a policy that they prefer.
Native Americans. Similarly, even if all of ically, and therefore that the proportion of trolling precedents. 1993 14.5% to justify on other grounds." Schuck, Affir-
the Native American applicants admitted in each group admitted should be the same as Justice Powell's approval of the use of 1994 20.1% mative Action: Past, Present, and Future, 26
a given year matriculate, which the record the proportion of that group in the appli- race in university admissions reflected a 1995 13.5% Yale L. & Pol'y Rev. 1, 34 (2002) (citing
demonstrates is not at all the case,* how cant pool. See Brief for Respondents tradition, grounded in the First Amend- 1996 13.8% Levinson, Diversity, 2 U. Pa. J. Const. L.
can this possibly constitute a "critical Bollinger et al. 43, n. 70 (discussing admis- ment, of acknowledging a university's con- 1997 13.6% 573, 577-578 (2000); Rubenfeld, Affirma-''
mass" of Native Americans in a class of sions officers' use of "periodic reports" to ception of its educational mission. Bakke, 1998 13.8% tive Action, 107 Yale L. J. 427, 471 (1997))
over 350 students? track "the racial composition of the devel- supra, at 312-314; ante, at 16-17. Our The narrow fluctuation band raises an This is not to suggest the faculty at Michi-
In order for this pattern of admission to oping class"). precedents provide a basis for the Court's inference that the Law School subverted gan or other law schools do not pursue "
be consistent with the Law School's expla- Not only do respondents fail to explain acceptance of a university's considered individual determination, and strict scruti- aspirations they consider laudable and con
nation of "critical mass," one would have to this phenomenon, they attempt to obscure judgment that racial diversity among stu- ny requires the Law School to overcome the sistent with our constitutional traditions. It
believe that the objectives of "critical it. See id., at 32, n. 50 ("The Law School's dents can further its educational task, when inference. Whether the objective of critical is but further evidence of the necessity for
mass" offered by respondents are achieved minority enrollment percentages ... supported by empirical evidence. Ante, at mass "is de-scribed as a quota or a goal, it scrutiny that is real, not feigned, where the'
with only half the number of Hispanics and diverged from the percentages in the appli- 17-19. is a line drawn on the basis of race and eth- corrosive category of race is a factor in
one-sixth the number of Native Americans cant pool by as much as 17.7% from It is unfortunate, however, that the Court nic status," and so risks compromising indi- decisionmaking. Prospective students, the
as compared to African-Americans. But 1995-2000"). But the divergence between takes the first part of Justice Powell's rule vidual assessment. Bakke, 438 U. S., at 289 courts, and the public can demand that the
respondents offer no race-specific reasons the percentages of underrepresented but abandons the second. Having approved (opinion of Powell, J.). In this respect the State and its law schools prove their
for such disparities. Instead, they simply minorities in the applicant pool and in the the use of race as a factor in the admissions Law School program compares unfavorably process is fair and constitutional in every
emphasize the importance of achieving enrolled classes is not the only relevant process, the majority proceeds to nullify with the experience of Little Ivy League phase of implementation.
"critical mass," without any explanation of comparison. In fact, it may not be the most the essential safeguard Justice Powell colleges. Amicus Amherst College, for It is difficult to assess the Court's pro-
why that concept is applied differently relevant comparison. The Law School can- insisted upon as the precondition of the example, informs us that the offers it nouncement that race-conscious admission
among the three underrepresented minority not precisely control which of its admitted approval. The safeguard was rigorous judi- extended to students of African-American programs will be unnecessary 25 years
groups. applicants decide to attend the university. cial review, with strict scrutiny as the con- background during the period from 1993 to from now. Ante, at 30-31. If it is intended
These different numbers, moreover, come But it can and, as the numbers demonstrate, trolling standard. Bakke, supra, at 291 2002 ranged between 81 and 125 out of 950 to mitigate the damage the Court does to
only as a result of substantially different clearly does employ racial preferences in ("Racial and ethnic distinctions of any sort offers total, resulting in a fluctuation from the concept of strict scrutiny, neither peti-
treatment among the three underrepresent- extending offers of admission. Indeed, the are inherently suspect and thus call for the 24 to 49 matriculated students in a class of tioners nor other rejected law school appli-
ed minority groups, as is apparent in an ostensibly flexible nature of the Law most exacting judicial examination"). This about 425. See Brief for Amherst College cants will find solace in knowing the bask
example offered by the Law School and School's admissions program that the Court Court has reaffirmed, subsequent to Bakke, et al. as Amici Curiae 10-11. The Law protection put in place by Justice Powell
highlighted by the Court: The school finds appealing, see ante, at 24-26, appears the absolute necessity of strict scrutiny School insisted upon a much smaller fluc- will be suspended for a full quarter of a
asserts that it "frequently accepts nonmi- to be, in practice, a carefully managed pro- when the state uses race as an operative tuation, both in the offers extended and in century. Deference is antithetical to strict
nority applicants with grades and test gram designed to ensure proportionate rep- category. Adarand Constructors, Inc. v. the students who eventually enrolled, scrutiny, not consistent with it.
scores lower than underrepresented minori- resentation of applicants from selected Pena, 515 U. S. 200, 224 (1995) ("[A]ny despite having a comparable class size. As to the interpretation that the opinion
ty applicants (and other nonminority appli- minority groups. person, of whatever race, has the right to The Law School has the burden of prov- contains its own self-destruct mechanism,
canis)'who are rejected." Ante, at 26 (citing I do not believe that the Constitution demand that anf governmental akt6f sub " ing, in conformance with the standard of the majority's abandonment of strict scruti-'
Brief for Respondents Bollinger et al. 10). gives the Law School such free rein in the ject to the Constitution justify any racial strict scrutiny, that it did-not utilize race in ny undermines this objective. Were the
Speifically, the Law Schpol states that use of race. The Law School has offered no classificaign subje inIg that peison to an unconstitutional way. 4darand Con- courts to apply a ssarching standard to
"[s]ixty-nine minority applicants were explanation for its actual admissions prac- unequal treatment under the strictest judi- structors, 515 U. S., at 224. At the very race-based admissions schemes, that would
rejected between 1995 and 2000 with at tices and, unexplained, we are bound to cial scrutiny"); Richmond v. J. A. Croson least, the constancy of admitted minority force educational institutions to seriously
least a 3.5 [Grade Point Average (GPA)] conclude that the Law School has managed Co., 488 U. S. 469, 493-494 (1989); see students and the close correlation between explore race-neutral alternatives. The
and a [score of] 159 or higher on the [Law its admissions program, not to achieve a id., at 519 (KENNEDY, J., concurring in the racial breakdown of admitted minorities Court, by contrast, is willing to be satisfied
School Admissions Test (LSAT)]" while a "critical mass," but to extend offers of part and concurring in judgment) ("[A]ny and the composition of the applicant pool, by the Law School's profession of its own
number of Caucasian and Asian-American admission to members of selected minority racial preference must face the most rigor- discussed by THE CHIEF JUSTICE, ante, good faith. The majority admits as much:
applicants with similar or lower scores groups in proportion to their statistical rep- ous scrutiny by the courts"). The Court at 3-9, require the Law School either to "We take the Law School at its word that it'
were admitted. Brief for Respondents resentation in the applicant pool. But this is confuses deference to a university's defini- produce a convincing explanation or to would 'like nothing better than to find a
Bollinger et al. 10. precisely the type of racial balancing that tion of its educational objective with defer- show it has taken adequate steps to ensure race-neutral admissions formula' and will
Review of the record reveals only 67 the Court itself calls "patently unconstitu- ence to the implementation of this goal. In individual assessment. The Law School terminate its race-conscious admissions
such individuals. Of these 67 individuals, tional." Ante, at 17. the context of university admissions the does neither. program as soon as practicable." Ante, at 30
56 were Hispanic, while only 6 were Finally, I believe that the Law School's objective of racial diversity can be accepted The obvious tension between the pursuit (quoting Brief for Respondent Bollinger et
African-American, and only 5 were Native program fails strict scrutiny because it is based on empirical data known to us, but of critical mass and the requirement of al. 34).
American. This discrepancy reflects a con- devoid of any reasonably precise time limit deference is not to be given with respect to individual review increased by the end of If universities are given the latitude to
sistent practice. For exam-ple, in 2000, 12 on the Law School's use of race in admis- the methods by which it is pursued. Prefer- the admissions season. Most of the deci- administer programs that are tantamount t
Hispanics who scored between a 159-160 sions. We have emphasized that we will ment by race, when resorted to by the State, sions where race may decide the outcome quotas, they will have few incentives to
on the LSAT and earned a GPA of 3.00 or consider "the planned duration of the reme- can be the most divisive of all policies, are made during this period. See supra, at make the existing minority admissions
higher applied for admission and only 2 dy" in determining whether a race-con- containing within it the potential to destroy 3. The admissions officers consulted the schemes transparent and protective of indi-
were admitted. App. 200-201. Meanwhile, scious program is constitutional. Fullilove, confidence in the Constitution and in the daily reports which indicated the composi- vidual review. The unhappy consequence
12 African-Americans in the same range of 448 U. S., at 510 (Powell, J. concurring); idea of equality. The majority today refuses tion of the incoming class along racial will be to perpetuate the hostilities that
qualifications applied for admission and all see also United States v. Paradise, 480 U. to be faithful to the settled principle of lines. As Dennis Shields, Director of proper consideration of race is designed to
12 were admitted. Id., at 198. Likewise, S. 149, 171 (1987) ("In determining strict review designed to reflect these con- Admissions from 1991 to 1996, stated, "the avoid. The perpetuation, of course, would
that same year, 16 Hispanics who scored whether race-conscious remedies are appro- cerns. further [he] went into the [admissions] sea- be the worst of all outcomes. Other pro-
between a 151-153 on the LSAT and priate, we look to several factors, including The Court, in a review that is nothing son the more frequently [he] would want to grams do exist which will be more effective
earned a 3.00 or higher applied for admis- the ... duration of the relief"). Our previ- short of perfunctory, accepts the University look at these [reports] and see the change in bringing about the harmony and mutual
sion and only 1 of those applicants was ous cases have required some limit on the of Michigan Law School's assurances that from day-to-day." These reports would respect among all citizens that our constitu
admitted. Id., at 200-201. Twenty-three duration of programs such as this because its admissions process meets with constitu- "track exactly where [the Law School] tional tradition has always sought. They,
similarly qualified African-Americans discrimination on the basis of race is invid- tional requirements. The majority fails to st[ood] at any given time in assembling the and not the program under review here,
applied for admission and 14 were admit- ious. confront the reality of how the Law class," and so would tell the admissions should be the model, even if the Court
ted. Id., at 198. The Court suggests a possible 25-year School's admissions policy is implemented. personnel whether they were short of defaults by not demanding it.
These statistics have a significant bear- limitation on the Law School's current pro- The dissenting opinion by THE CHIEF assembling a critical mass of minority stu- It is regrettable the Court's important
ing on petitioner's case. Respondents have gram. See ante, at 30. Respondents, on the JUSTICE, which I join in full, demon- dents. Shields generated these reports holding allowing racial minorities to have
never offered any race-specific arguments other hand, remain more ambiguous, strates beyond question why the concept of because the Law School's admissions poli- their special circumstances considered in
explaining why significantly more individ- explaining that "the Law School of course critical mass is a delusion used by the Law cy told him the racial make-up of the enter- order to improve their educational opportu-
uals from one underrepresented minority recognizes that race-conscious programs School to mask its attempt to make race an ing class was "something [he] need[ed] to nities is accompanied by a suspension of
group are needed in order to achieve "criti- must have reasonable durational limits, and automatic factor in most instances and to be concerned about," and so he had "to find the strict scrutiny which was the predicate
cal mass" or further stu-dent body diversi- the Sixth Circuit properly found such a achieve numerical goals indistinguishable a way of tracking what's going on." of allowing race to be considered in the
ty. They certainly have not explained why limit in the Law School's resolve to cease from quotas. An effort to achieve racial bal- The consultation of daily reports during first place. If the Court abdicates its consti-
Hispanics, who they have said are among considering race when genuine race-neutral ance among the minorities the school seeks the last stages in the admissions process tutional duty to give strict scrutiny to the
"the groups most isolated by racial barriers alternatives become available." Brief for to attract is, by the Court's own admission, suggests there was no further attempt at use of race in university admissions, it
in our country," should have their admis- Respondents Bollinger et al. 32. These dis- "patently unconstitutional." Ante, at 17; see individual review save for race itself. The negates my authority to approve the use of':
sion capped out in this manner. Brief for cussions of a time limit are the vaguest of also Bakke, 438 U. S, at 307 (opinion of admissions officers could use the reports to race in pursuit of student diversity. The
Respondents Bollinger et al. 50. True, peti- assurances. In truth, they permit the Law Powell, J.). It remains to point out how crit- recalibrate the plus factor given to race Constitution cannot confer the right to clas-
tioner is neither Hispanic nor. Native Amer- School's use of racial preferences on a ical mass be-comes inconsistent with indi- depending on how close they were to sify on the basis of race even in this special
ican. But the Law School's disparate seemingly permanent basis. Thus, an vidual consideration in some more specific achieving the Law School's goal of critical context absent searching judicial review.
admissions practices with respect to these important component of strict scrutiny- aspects of the admissions process. mass. The bonus factor of race would then For these reasons, though I reiterate my
minority groups demonstrate that its that a program be limited in time-is casu- About 80 to 85 percent of the places in become divorced from individual review; it approval of giving appropriate considera-
alleged goal of "critical mass" is simply a ally subverted. the entering class are given to applicants in would be premised instead on the numeri- tion to race in this one context, I must dis-
sham. Petitioner may use these statistics to The Court, in an unprecedented display the upper range of Law School Admissions cal objective set by the Law School. sent in the present case.
expose this sham, which is the basis for the of deference under our strict scrutiny Test scores and grades. An applicant with The Law School made no effort to guard
Law School's admission of less qualified analysis, upholds the Law School's program these credentials likely will be admitted against this danger. It provided no guide-
underrepresented minorities in preference despite its obvious flaws. We have said that without consid-eration of race or ethnicity. lines to its admissions personnel on how to
to her. Surely strict scrutiny cannot permit when it comes to the use of race, the con- With respect to the remaining 15 to 20 per- reconcile individual assessment with the W ANT O T
these sort of disparities without at least nection between the ends and the means cent of the seats, race is likely outcome directive to admit a critical mass of minori-
some explanation. used to attain them must be precise. But determinative for many members of minori- ty students. The admissions program could "TE FOR TH
Only when the "critical mass" label is here the flaw is deeper than that; it is not ty groups. That is where the competition have been structured to eliminate at least RITE ly etsnohd
discarded does a likely explanation for merely a question of "fit" between ends becomes tight and where any given appli- some of the risk that the promise of indi-' DU ?
these numbers emerge. The Court states and means. Here the means actually used cant's chance of admission is far smaller if vidual evaluation was not being kept. The
that the Law School's goal of attaining a are forbidden by the Equal Protection he or she lacks minority status. At this daily consideration of racial breakdown of ""''' TS Fl !
"critical mass" of underrepresented minori- Clause of the Constitution. point the numerical concept of critical mass admitted students is not a feature of affir- T S FUN.
ty students is not an interest in merely has the real potential to compromise indi- mativeaction programs used by other insti-
"'assur[ing] within its student body some vidual review. tutions of higher learning. The Little Ivy
specified percentage of a particular group *Indeed, during this 5-year time period, The Law School has not demonstrated League colleges, for instance, do not keep
merely because of its race or ethnic ori- enrollment of Native American students how individual consideration is, or can be, ongoing tallies of racial or ethnic composi- CA L. 76-D AILY
gin."' Ante, at 17 (quoting Bakke, 438 U. dropped to as low as three such students. preserved at this stage of the application tion of their entering students. See Brief for
S., at 307 (opinion of Powell, J.)). The Any assertion that such a small group con- process given the instruction to attain what Amherst College et al. as Amici Curiae 10. OR E-M AIL
Court recognizes that such an interest stituted a "critical mass" of Native Ameri- it calls critical mass. In fact the evidence To be constitutional, a university's com-
"would amount to outright racial balancing, cans is simply absurd. shows otherwise. There was little deviation pelling interest in a diverse student body '
which is patently unconstitutional." Ante, at among admitted minority students during must be achieved by a system where indi- El
17. The Court concludes, however, that the JUSTICE ANTHONY KENNEDY, dis- the years from 1995 to 1998. The percent- vidual assessment is safeguarded through
Law School's use of race in admissions, Senting. age of enrolled minorities fluctuated only the entire process. There is no constitution-
consistent with Justice Powell's opinion in by 0.3%, from 13.5% to 13.8%. The num- al objection to the goal of considering race
Bakke, only pays "'[s]ome attention to The separate opinion by Justice Powell in ber of minority students to whom offers as one modest factor among many others to
numbers."' Ante, at 23 (quoting Bakke, Regents of Univ. of Cal. v. Bakke is based were extended varied by just a slightly achieve diversity, but an educational insti-
9 t r , s