Grutter v. Bollinger

Based on Wikipedia: Grutter v. Bollinger

In 2003, Justice Sandra Day O'Connor made a prediction. Writing for the Supreme Court majority, she declared that in twenty-five years, racial preferences in college admissions would no longer be necessary. It was a curious thing for a justice to do—set an expiration date on a constitutional principle.

She was off by five years. In 2023, the Supreme Court effectively killed the very policy O'Connor had crafted, ruling that race-conscious admissions violated the Constitution's guarantee of equal protection under the law.

The case that gave O'Connor her platform was Grutter v. Bollinger, and it tells us something profound about how America has wrestled with one of its most vexing questions: How do you remedy centuries of racial exclusion without creating new forms of discrimination?

Barbara Grutter's Rejection Letter

Barbara Grutter wanted to be a lawyer. She had a 3.8 grade point average and scored 161 on the Law School Admission Test—solid numbers by any measure. When the University of Michigan Law School rejected her application, she didn't assume she simply wasn't qualified.

She sued.

Grutter alleged that the law school had discriminated against her because of her race. The school, she claimed, was giving applicants from certain minority groups—particularly African Americans and Hispanics—a significantly greater chance of admission than white applicants with similar credentials. The defendant named in the case was Lee Bollinger, then president of the University of Michigan.

The university didn't deny using race in admissions. Instead, it offered a justification: there was a compelling state interest in ensuring a "critical mass" of minority students on campus. What did that mean, exactly? The university argued that having enough minority students would prevent those students from feeling isolated or from being treated as spokespersons for their entire race. It would provide opportunities for the kind of cross-racial interaction that creates genuine educational benefits. And it would challenge all students to examine their assumptions and stereotypes.

This was not merely a feel-good rationale. The university was making a constitutional argument. Under the Fourteenth Amendment's Equal Protection Clause, the government generally cannot treat people differently based on race. But there's an exception: the government can use racial classifications if it has a "compelling interest" and if its methods are "narrowly tailored" to achieve that interest. The university was claiming that educational diversity qualified.

The Shadow of Bakke

Twenty-five years before Grutter, the Supreme Court had grappled with almost exactly the same question in a case called Regents of the University of California v. Bakke. Allan Bakke, a white applicant, had been rejected twice from the medical school at the University of California, Davis, even though his test scores were higher than those of some minority applicants who were admitted under a special program that reserved sixteen seats for disadvantaged minorities.

The Bakke decision was famously fractured. No single opinion commanded a majority. But Justice Lewis Powell wrote a concurrence that became the functional law of the land. Powell said that universities could consider race as one factor among many in admissions—as a "plus" that might tip the balance for individual applicants. What they could not do was establish rigid quotas that reserved a fixed number of seats for minority applicants.

Powell pointed to Harvard's admissions program as an example of how to do it right. Harvard considered race alongside geography, special talents, and other factors that might contribute to a diverse class. No seats were set aside; every applicant competed against every other applicant.

For a quarter century, universities operated under the Bakke framework, treating Powell's opinion as binding precedent even though it was only one justice's view. The question lingering in the background was whether the full Court would ever definitively embrace or reject it.

The Lower Courts Split

Barbara Grutter's lawsuit wound its way through the federal courts. In March 2001, a district court judge ruled against the university. The law school's admissions policies were unconstitutional, Judge Bernard Friedman wrote, because they "clearly consider" race and are "practically indistinguishable from a quota system."

The Sixth Circuit Court of Appeals disagreed. In a closely divided 5-4 ruling, the appeals court reversed the decision. The university's program was constitutional, the majority held, because it followed the Bakke playbook: race was merely a "potential plus factor" in a holistic review of each applicant.

The stage was set for the Supreme Court to finally resolve the question it had sidestepped in Bakke.

A Rare Public Hearing

On April 1, 2003, the Supreme Court heard oral arguments in Grutter v. Bollinger. The Court took the unusual step of releasing the audio recordings to the public the same day—only the second time it had ever done so. The first time was Bush v. Gore, the case that decided the 2000 presidential election. The Court clearly understood that this was a historic moment.

The case also generated a record number of amicus curiae briefs—friend-of-the-court filings from interested parties who were not directly involved in the litigation. Major corporations, military leaders, and educational institutions all weighed in, most of them in support of the university's position. The business community, in particular, argued that diverse educational environments produced the kind of employees they needed to compete in a global marketplace.

O'Connor's Balancing Act

Justice Sandra Day O'Connor wrote the majority opinion, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. O'Connor had built her career as a swing vote, and this case was no exception. She crafted an opinion that preserved affirmative action while hedging it with conditions and time limits.

The Constitution, O'Connor wrote, "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."

There was a lot packed into that sentence. First, the Court was accepting that diversity in higher education was a "compelling interest" that could justify race-conscious policies. Second, the Court was finding that Michigan's program was "narrowly tailored" because it considered each applicant as an individual rather than assigning automatic bonuses based on race.

This second point was crucial. On the same day, in a companion case called Gratz v. Bollinger, the Court struck down the University of Michigan's undergraduate admissions program. That program awarded twenty points on a 150-point scale to every applicant from an underrepresented minority group. The Court found this too mechanical, too close to the quota system that Powell had condemned in Bakke.

The law school's program was different. It didn't assign points. It engaged in what admissions officers call "holistic review," considering each applicant's entire file and weighing race as one factor among many. This, O'Connor held, was the constitutionally acceptable approach.

The Twenty-Five Year Clock

Then came the prediction. "Race-conscious admissions policies must be limited in time," O'Connor wrote. The Court took the law school at its word that it would prefer a race-neutral admissions formula and would "terminate its use of racial preferences as soon as practicable."

And then: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

This was extraordinary. Constitutional law doesn't usually come with expiration dates. O'Connor was essentially saying that affirmative action was a temporary remedy—a bridge to a future where it would no longer be needed. Whether she genuinely believed that future would arrive on schedule, or whether she was simply trying to make the policy more palatable to skeptics, remains a matter of debate.

Justices Ginsburg and Breyer joined O'Connor's opinion but notably did not endorse the twenty-five-year prediction. They may have understood, as many observers did, that the achievement gaps and structural inequalities that affirmative action was meant to address would not dissolve according to a judicial timetable.

The Dissenters Strike Back

Chief Justice William Rehnquist led the dissent, joined by Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. They did not buy the "critical mass" argument.

Rehnquist dug into the admissions data. If the law school genuinely wanted a "critical mass" of minority students—enough to prevent isolation and enable meaningful interaction—why did the absolute numbers vary so dramatically across groups? From 1995 through 2000, the law school admitted between 13 and 19 Native Americans each year, between 91 and 108 African Americans, and between 47 and 56 Hispanics.

"One would have to believe that the objectives of 'critical mass' are achieved with only half the number of Hispanics, and one-sixth the number of Native Americans as compared to African Americans," Rehnquist wrote. The numbers weren't random, he argued. They tracked almost precisely with the percentage of applicants from each group. This wasn't holistic review; it was quota-like proportional representation dressed up in different language.

Clarence Thomas's Fury

Justice Clarence Thomas wrote separately, and his opinion crackled with indignation. Thomas, himself an African American graduate of Yale Law School, had long been skeptical of affirmative action, which he saw as both constitutionally indefensible and personally demeaning.

Thomas attacked the premise that Michigan needed an elite law school at all. Many states, he pointed out, don't have law schools, let alone elite ones. If the university couldn't maintain its prestige while admitting students through a race-neutral process, perhaps it should simply become less prestigious. "The Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system," he wrote.

He pointed to the University of California, Berkeley's law school as evidence that elite status and diversity were achievable without racial preferences. After California voters passed Proposition 209, which banned affirmative action in public education, Berkeley had found ways to maintain a diverse student body. The Court, Thomas argued, was "willfully blind" to this reality.

Thomas also took aim at O'Connor's twenty-five-year timeline. He agreed that racial preferences would be unlawful in twenty-five years—because, he argued, they were unlawful right now. The timeline wasn't a sunset provision; it was an admission that the Court was permitting something unconstitutional in the hope that it would eventually become unnecessary.

The Political Backlash

The decision was a victory for the university, but the battle wasn't over. Three years later, Michigan voters approved Proposal 2, also known as the Michigan Civil Rights Initiative. Modeled on California's Proposition 209 and Washington's Initiative 200, Proposal 2 amended the state constitution to prohibit the use of race in public university admissions.

This created an interesting legal puzzle. The Supreme Court had said that race-conscious admissions were constitutional. But could states ban the practice even though it was permitted? The courts had to wrestle with whether such bans themselves violated equal protection by making it harder for minorities to advocate for policies that benefited them.

The Sixth Circuit initially struck down Proposal 2, with two judges writing that it "reorders the political process in Michigan to place special burdens on minority interests." But the Supreme Court ultimately upheld the amendment in Schuette v. Coalition to Defend Affirmative Action, ruling that voters had the right to prohibit racial preferences even if the Constitution did not require such a prohibition.

Fisher and the Slow Erosion

Meanwhile, the legal landscape continued to shift. In 2013, the Court decided Fisher v. University of Texas, a challenge to the University of Texas at Austin's admissions policy. The Court reaffirmed that diversity was a compelling interest but added an important caveat: universities were entitled to no deference on their judgment that race-conscious admissions were necessary to achieve diversity.

This was a subtle but significant tightening of the standard. Under Grutter, courts had given universities substantial leeway to decide whether racial preferences were needed. Under Fisher, universities would have to prove that race-neutral alternatives couldn't achieve the same results.

The case went back to the lower courts and eventually returned to the Supreme Court in 2016. That time, the Court narrowly upheld Texas's program. But the writing was on the wall. The Court's composition was changing, and the justices who had supported Grutter were being replaced by skeptics.

The End of an Era

In 2023, twenty years after Grutter, the Supreme Court decided Students for Fair Admissions v. Harvard. The Court ruled 6-3 that race-conscious admissions at Harvard and the University of North Carolina violated the Equal Protection Clause. Chief Justice John Roberts, writing for the majority, held that the programs lacked sufficiently focused and measurable objectives, used race as a negative for some applicants, and involved racial stereotyping.

The decision effectively overruled Grutter without explicitly saying so. O'Connor's prediction had come true, just not in the way she may have intended. It wasn't that racial preferences had become unnecessary; it was that the Court's majority had decided they were impermissible.

What Grutter Reveals

Looking back at Grutter v. Bollinger, we can see it as a moment when the Court tried to split the difference on an issue that perhaps doesn't allow for splitting. O'Connor wanted to preserve affirmative action while constraining it—to validate diversity as a goal while requiring universities to pursue it through acceptable means.

The distinction between the law school's holistic review (constitutional) and the undergraduate program's point system (unconstitutional) may have seemed principled in theory. In practice, both programs were trying to achieve the same end: a student body that looked different from what race-neutral admissions would produce.

The dissenters in Grutter understood this. They saw the "narrowly tailored" language as window dressing on what was functionally a racial balancing system. Whether you view that as a damning indictment or simply an accurate description of what universities were doing depends largely on whether you think such balancing is justified.

The twenty-five-year timeline was always the strangest part of the opinion. Constitutional rights don't usually come with built-in obsolescence. Either the Equal Protection Clause permits racial preferences in pursuit of diversity, or it doesn't. Saying it permits them now but probably won't later was either a pragmatic recognition that times change, or an admission that the legal reasoning was more instrumental than principled.

In the end, the clock ran out five years early. The Court that decided Students for Fair Admissions didn't wait for the educational benefits of diversity to become unnecessary. It simply concluded that the Constitution's command of equal treatment meant what it said—that the government, including public universities, cannot treat people differently because of their race, even in pursuit of goals that many consider worthy.

Barbara Grutter, whose rejected application started this twenty-year saga, never did attend Michigan Law School. But her case reshaped American higher education, first by preserving affirmative action under careful constraints, and ultimately by providing the precedent that a later Court would dismantle. The Constitution, it turns out, doesn't come with a twenty-five-year clock. But judicial interpretations of it sometimes do.