Affirmative Action at Law School

The University of Michigan Law School is one of the most selective in the country. But it relies on race in considering applicants, and that practice led to a highly publicized lawsuit.

The school denied using racial quotas. Instead, it claimed to seek a non-quota "critical mass" for certain minority groups. Its stated rationale was to prevent members of those groups from feeling isolated at the school.

Between 1995 and 1998, the last four years for which data were available, the school enrolled between 13.5% to 13.7% of each class as so-called under-represented minorities consisting of African American, Native American, Mexican American and mainland Puerto Rican students. Specifically, the school enrolled as under-represented minorities 47 of 341 students in 1998, 46 of 339 in 1997, 44 of 319 in 1996, and 46 of 340 in 1995. The school was thus more precise in enrolling a certain percentage of under-represented minorities than in determining its total number of students.

To meet its stated goal of a "critical mass" of minorities, the school inevitably rejected some students who had superior grades and LSAT scores but who lacked the desired racial characteristics. Barbara Grutter, a Caucasian who was denied admission, sued on behalf of herself and others like her.

This controversy was headed for determination by an en banc sitting of all active judges on the Court of Appeals for the Sixth Circuit. But two judges, one appointed by Reagan and one by the first President Bush, were on the verge of retiring from active service. The timing of when the case would be heard became pivotal.

The Senate's intransigent blocking of new judges, particularly of nominee Jeffrey Sutton, made the difference. The petition for en banc review of the dispute was withheld from consideration until after the two Reagan- and Bush-appointed judges had left active service.

The two empty seats endowed the Carter- and Clinton-appointed judges with a 6-3 majority. The Court reversed the decision below and upheld the school's admissions policy by 5-4. Grutter v. Bollinger, 288 F.3d 732 (6th Cir., May 14, 2002).

The majority relied on Justice Powell's concurrence in the famous case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978), where a race-based admissions policy was invalidated in a suit brought by a rejected white medical school applicant. That decision lacked a clear rule and instead featured many concurrences. Justice Powell's concurrence is considered by some to be the consensus holding, and by others to be merely non-binding dicta.

To five judges in the Eighth Circuit, Justice Powell's Bakke concurrence is binding law. He opposed racial quotas, but endorsed a so-called Harvard plan that is "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Id. at 317. Justice Powell felt that race could "tip the balance" in an applicant's favor, but so could other factors like "geographic origin or a life spent on a farm." Id. at 316. His approach is sometimes called "plus among equals."

The 5-4 Eighth Circuit majority held that the goal of diversity alone is sufficient to qualify as a compelling state interest and justify the use of race as one admissions criterion. This is somewhat different from the traditional rationale of allowing the use of race to remedy past racial discrimination.

One of the Clinton-appointed judges, however, found the admissions policy of the University of Michigan to be a quota in disguise, and thus unconstitutional. Judge Ronald Gilman wrote in dissent that "[t]he ‘critical mass' therefore appears to be a euphemism for the quota system that Bakke explicitly prohibits."

The most forceful dissent was by Reagan-appointed Judge Danny Boggs, who complained both about the procedural chicanery and disregard for the Equal Protection Clause of the Constitution. "[S]o long as the Equal Protection Clause is a part of the United States Constitution," America may not join other countries like India and Serbia to "arrange social outcomes proportionally according to the race or ethnicity of its citizens."