Gratz v. Bollinger, 539 U.S. 244 (2003) and; Grutter v. Bollinger, 539 U.S. 306 (2003)

In these two closely watched cases, white students brought class-action challenges to affirmative action policies and practices in the admissions processes of the undergraduate and law schools of the University of Michigan. The white students allege that the University discriminated against them by using different standards to admit students of different races. The undergraduate and law school programs both consider race as one among a number of factors in admissions. Given the national importance of these cases, AAUP took the unusual step in April 1999 of signing an amicus brief at the trial level with the American Council on Education and many other higher education organizations, and has joined briefs with these organizations at every level since. The briefs emphasized the educational benefits of racial diversity in higher education among faculty and students, and urged the court to follow the 1978 U.S. Supreme Court Bakke decision.

On June 23, 2003 the U.S. Supreme Court finally issued its much awaited decisions in these two cases. The Court issued its Grutter decision first--a 5-4 decision written by Justice Sandra Day O'Connor. In it the Court endorsed Justice Powell's decision in Regents of the University of California v. Bakke, finding diversity in higher education to be a compelling state interest and upholding the law school admissions program. The Court noted the individuality of the review in the law school, and held that race can be considered as a "plus" factor in admissions if it is considered in the context of a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment."

In contrast, however, in the 6 to 3 Gratz decision, Justice O'Connor joined the opinion's author, Justice William Rehnquist, and four other justices in striking down Michigan's undergraduate admissions program. Importantly, the Gratz decision upheld the concept of affirmative action and diversity as a compelling interest. But it also struck down Michigan's undergraduate admissions process, finding its award of 20 points out of 150 to underrepresented minority applicants solely because of race to be insufficiently "narrowly tailored to achieve the interest in educational diversity that respondents' claim justifies their program."

The decisions also represented an important statement in the academic freedom arena. Not only did the Court uphold educational diversity as a justification for affirmative action, but it recognized the need for deference to educators to determine the best educational environment. The Grutter majority opinion affirmed that "given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Recognizing the Court's "tradition of giving a degree of deference to a university's academic decisions," Justice O'Connor went on to conclude that "good faith on the part of a university is presumed absent a showing to the contrary." Justice O'Connor noted specifically in discussing the facts of the case that a faculty committee crafted the admissions policy the Court was upholding, that it became the official policy upon unanimous adoption by the entire law school faculty, and that the policy was focused on evaluating applicants with an eye toward their "potential to contribute to the learning of those around them." Having recognized the deference that such academic decisions should receive, she especially acknowledged that the question of the educational benefits of diversity involves "complex educational judgments in an area that lies primarily within the expertise of the university."

As it has done since the trial level in these cases, AAUP joined a brief (pdf) in each case with the American Council on Education and many other higher education organizations. The briefs emphasized the educational benefits of racial diversity in higher education among faculty and students, and the necessity of preserving educators' academic freedom in determining criteria for student admissions.

Status: The Supreme Court issued decisions in Gratz and Grutter on June 23, 2003. 

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