Official Publication of the Minnesota State Bar Association

Vol. 60, No. 2 | February 2003
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Affirmative Action: A Close Case for a Split Court

Two Michigan cases now before the U.S. Supreme Court augur to produce the most significant affirmative action decision since Bakke. As has often been true in recent years, the key vote is likely to be that of Justice O'Connor

by Ann L. Iijima

Last season, both CBS and ABC aired prime-time television programs based on the premise that the newest appointment to the United States Supreme Court was required to provide the crucial fifth vote on a variety of compelling, controversial issues. These shows, "First Monday" and "The Court," reflected the state of the real Supreme Court: two groups of justices, one consistently relatively conservative, another consistently relatively liberal, contending for the votes of the more moderate justices.

One topic that the television courts did not address, and that the real Court has not addressed for nearly 25 years, is the extent to which public universities may use race-based affirmative action in their admissions programs.

On December 2, 2002, however, the Court granted certiorari in Grutter v. Bollinger1 and in Gratz v. Bollinger,2 agreeing to review the affirmative action programs used by the law and undergraduate schools of the University of Michigan. On the one hand, the Court's acceptance of the cases was unexpected; the Court recently had denied certiorari in similar cases from the 5th and 9th Circuits.3 On the other hand, the Court was under increasing pressure to hear an affirmative action case. With the 6th Circuit's decision in Grutter v. Bollinger, upholding Michigan's law school program, the 6th Circuit joined a growing split -- the 5th Circuit striking down, and the 9th and 6th Circuits upholding affirmative action programs in higher education.4 Additionally, the fact that Grutter was a 5:4 decision of the 6th Circuit, sitting en banc, presented an attractive case for review. Finally, by granting certiorari in Gratz v. Bollinger while the case was still pending in the 6th Circuit, the Court implicitly acknowledged that the issue of affirmative action satisfied the requirements of Supreme Court Rule 11: it "is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."5

One justice is likely to decide the outcome in these long-awaited affirmative action decisions: Justice Sandra Day O'Connor. ABC, in summarizing the premise of "The Court," accurately described Justice O'Connor's situation: "Kate Nolan (Sally Field), a pragmatic politician, is the newest addition to a deeply divided U.S. Supreme Court, [navigating] between the liberal and conservative camps of her new colleagues ... ."6 This article explores the historical and legal backdrop of the affirmative action issue and discusses Justice O'Connor's potential role in the outcome.


The Court has agreed to consider the extent to which public educational institutions may use race-based affirmative action when not under a court order to remedy their own prior discrimination. In Regents of the University of California v. Bakke,7 the last such case heard by the Court, it struck down a program setting aside 16 out of 100 medical school slots for minority students. Although the Court held that this racial quota violated the Equal Protection Clause, it indicated that race could be considered as one factor in admissions decisions.8

Grutter and Gratz neatly illustrate the controversial nature of the problem. The United States District Court for the Eastern District of Michigan struck down the affirmative action program in Grutter but upheld the program in Gratz. These divergent outcomes arguably resulted from the distinctive approaches taken by the judges (Judges Friedman and Duggan, respectively) rather than from any differences in the programs themselves. (The 6th Circuit reversed the district court opinion in Grutter, upholding the law school's affirmative action program, but had not rendered a decision in Gratz prior to the Supreme Court's granting of certiorari.)

The Standard of Review

Although the "black-letter" rule is that the Court will apply strict scrutiny when reviewing affirmative action programs, this rule does not reflect the complexity of the legal situation. When Justice Ginsburg spoke a few years ago at the annual meeting of the Association of American Law Schools, a law professor asked, "If there were one message you would have us take back to our students, what would it be?" She replied that the students always should remember that lawyers addressing the Court are not speaking to an anonymous entity, but to nine people whose judicial philosophies are knowable, and whose individual concerns specifically should be addressed.

Justice Ginsburg's advice is particularly important in the area of affirmative action, because the justices are likely to apply different standards of review. The Bakke Court did not establish which Equal Protection level of scrutiny it would apply to affirmative action programs.9 Although five justices voted to strike down the program, only Justice Powell used the strict scrutiny standard. Four justices apparently used intermediate scrutiny in voting to uphold the program. The strict scrutiny versus intermediate scrutiny debate continues to this day. A five-justice majority finally coalesced to apply strict scrutiny to an affirmative action program in 1989.10 Five of the current justices still support strict scrutiny, arguing that Equal Protection requires strict scrutiny for any use of racial classifications.11 The situation might be considered an "uneasy peace," however, because four of the justices support the use of intermediate scrutiny, arguing that affirmative action represents a benign use of racial classifications and is to be distinguished from invidious racial discrimination.12

Nevertheless, in order for the University of Michigan's affirmative action programs to pass the Equal Protection challenge, strict scrutiny will be the determinative standard of review. Obtaining the first four votes will be a relatively simple matter. Justices Stevens, Souter, Ginsburg, and Breyer, supporters of the intermediate scrutiny standard, probably will support the affirmative action programs; they will need to be convinced only that the programs are substantially related to an important state interest. In order to obtain the final vote, however, the University of Michigan ("University") will have to convince one of the remaining justices -- Rehnquist, O'Connor, Kennedy, Scalia, or Thomas, supporters of strict scrutiny -- that its affirmative action programs are narrowly tailored to serve a compelling state interest.

Obtaining that last, all-important vote will be a major hurdle for the University. Justice O'Connor's vote probably will be determinative; the votes of Justices Scalia and Thomas certainly will be out of reach, and those of Justices Rehnquist and Kennedy nearly as unlikely.

A Compelling State Interest

The first prong of the strict scrutiny standard requires the University to prove that it has a compelling interest supporting the use of an affirmative action program. A number of interests arguably support the use of affirmative action programs, including (1) remedying past discrimination, (2) increasing the number of law students and lawyers from groups significantly underrepresented in the legal profession, (3) mitigating the discriminatory impacts of numerical predictors, and (4) gaining the educational benefits of racial diversity. The question is whether the Court will consider any of these interests compelling.

Remedying past discrimination. If the issue were raised, a majority of the Court likely would hold that the University does not have a compelling interest in remedying past discrimination. Although all nine justices agree that it is constitutional for a federal court to order a remedy for a specific person who has been the victim of race discrimination, affirmative action policies typically are not designed for this purpose. Rather, these policies often are designed, in part, to provide a remedy for the societal discrimination which caused certain groups to be underrepresented.

Using intermediate scrutiny, Justices Souter, Ginsburg, and Breyer probably would find that remedying past societal discrimination was sufficiently important to justify an affirmative action policy. In his dissenting opinion in Adarand Constructors, Inc. v. Pena, which Justices Ginsburg and Breyer joined, Justice Souter stated that the power to remedy past discrimination "extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination."13 Justice Ginsburg stated that Congress is able "to act affirmatively, not only to end discrimination, but also to counteract discrimination's lingering effects."14 Justice Stevens would be likely to vote with Justices Souter, Ginsburg, and Breyer in support of the affirmative action program, but probably would add, as he has in a number of cases, that such programs are not limited to remedying past discrimination.15

The all-important fifth vote probably would not be available, however, because none of the remaining justices are likely to accept a group remedy as a compelling interest justifying the admissions program. Justice Scalia has stated that "government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction."16 In her dissenting opinion in Metro Broadcasting Inc. v. FCC, which Justices Rehnquist, Kennedy, and Scalia joined, Justice O'Connor stated, "An interest capable of justifying race-conscious measures must be sufficiently specific and verifiable, such that it supports only limited and carefully defined uses of racial classifications. In Croson, we held that an interest in remedying societal discrimination cannot be considered compelling." Justice Thomas has gone further, stating that there is a moral and constitutional equivalence "between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality."17

Mitigating the discriminatory impact. If the issue were raised, the University's interest in using its affirmative action program to mitigate the impact of numerical indicators also would not be sufficient. Most undergraduate and law schools base admissions decisions, in part, on tests such as the act and the lsat. The use of these tests, however, often results in the underrepresentation of many minority groups. Additionally, educational institutions recognize that, while these tests are useful in terms of predicting academic potential, their accuracy is limited.18 Michigan's law school was particularly skeptical of their predictive value for minority students.19 The Grutter intervenors went further, arguing that the lsat was culturally biased.20

The majority of the Court, however, likely would agree with the argument of the district court in Grutter: any disadvantage suffered by minority students on the lsat test ultimately is attributable to societal discrimination.21 It probably would hold that a more appropriate remedy for this problem would be for the law school to decrease reliance on test scores, a less discriminatory alternative to the use of a race-based program.22

Increasing the numbers. Similarly, a majority of the Court probably would not accept increasing the number of minority law students and lawyers as a compelling interest; the Court often considers this interest to be effectively equivalent to an outright quota system. In City of Richmond v. J.A. Croson Co., for example, Justice O'Connor indicated that "outright racial balancing" in awarding government contracts would not be permissible.23

Obtaining educational benefits of diversity. The law school interest most likely to be accepted as compelling is the increased quality of education created by a racially diverse student body. Michigan's law school argued that a diverse student body would have an extremely positive impact on the education process. The multiplicity of perspectives and experiences would: (1) enable students with varying backgrounds to "respect and learn from each other,"24 (2) enrich everyone's education by making law school livelier, more interesting, and more dynamic, (3) enhance the quality of classroom analysis and discussion, (4) help students to understand and be sympathetic to differing points of view, and (5) dismantle the stereotype of there being a "minority viewpoint."25

The University's interest in a diverse student body is likely to be the central issue for the Court. In Bakke, Justice Powell held that the medical school's interest in a diverse student body was compelling.26 No other justice joined this portion of his opinion, however. Since Bakke, although the Court has mentioned the diversity issue, there has not been a majority opinion declaring whether or not diversity in an educational institution is a compelling interest.

Although the diversity issue in the educational context has not come before the Court since Justices Souter, Thomas, Ginsburg, and Breyer joined the bench, some predictions are possible. Justices Stevens, Ginsburg, Souter, and Breyer are likely to accept diversity as sufficiently important to withstand constitutional scrutiny. In Adarand, Justice Stevens, joined by Justice Ginsburg, stated that Metro Broadcasting settled the point that an interest in diversity justified racial classifications.27 Justices Souter and Breyer also will be likely to accept diversity as an important interest for a law school. Although Justice Souter did not join Justice Stevens' dissent in Adarand, in his dissenting opinion, he stated: "The Court has long accepted the view that constitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination."28

The other justices will be extremely reluctant to accept diversity as a compelling interest. Justices O'Connor, Rehnquist, Kennedy, and Scalia have suggested that racial classifications should be "strictly reserved for remedial settings."29 In her dissenting opinion in Metro Broadcasting, Justice O'Connor, joined by Justices Rehnquist, Kennedy, and Scalia, specifically stated:

Modern equal protection doctrine has recognized only one [compelling] interest: remedying the effects of racial discrimination. The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications.30

Despite this statement, it is possible that Justice O'Connor will serve as a "wild card" on this issue. Her sentiments opposing the diversity rationale arose in the context of broadcast diversity, not diversity in an educational setting. In fact, in her concurring opinion in Wygant, she conceded the compelling nature of diversity in that latter context, observing that "although its precise contours are uncertain, a state interest in the promotion of racial diversity has been found sufficiently compelling, at least in the context of higher education, to support the use of racial considerations in furthering that interest."31 Justice O'Connor might feel bound by this precedent, despite her general misgivings regarding affirmative action; in a number of opinions, she has stressed the importance of stare decisis.32 As she stated in Adarand, "Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification."33

Accordingly, the only interest of the University supporting its admissions program which is at all likely to be considered compelling is its interest in a racially diverse student body, and Justice O'Connor's vote will be essential.

Is Affirmative Action "Necessary"

The Court will not only need to be convinced that the law school had a compelling interest, but also that the affirmative action programs are narrowly tailored (necessary) to achieve that interest. If there are less discriminatory methods of achieving that interest, particularly if there are race-neutral alternatives, the classification will fail strict scrutiny.34 Even the justices who disfavor the use of race in any context reluctantly acknowledge that, "[i]n the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion."35

Although the affirmative action programs at issue in Grutter and Gratz are not identical and varied somewhat over the years, both schools considered an applicant's minority status as a positive factor in the admission process. Accordingly, some minority applicants obtained admission with lower numerical predictors than unsuccessful non-minority applicants. The constitutionality of the programs will depend, in part, on how the Court characterizes the programs.

Quotas (rigid numerical set-asides). If the Court determines that the University has, in effect, established racial quotas, it will hold the programs unconstitutional. Although the Court has indicated that the use of racial quotas might be permissible in certain narrow circumstances, it has been extremely reluctant to allow their use. The parties challenging the University's admissions policies probably will argue that the University has, in effect, established racial quotas for both its undergraduate and law school admissions policies. For example, the law school has determined that a "critical mass" of 10 to 12 percent minority students is essential in order to "realize the educational benefits of a diverse student body," and consistently has succeeded in admitting sufficient minority students to fill 11 percent of the first-year class. As it fills each entering class, it keeps an eye on the class demographics, including the racial mixture of the admitted students.36

Use of race as one factor. The programs will stand a better chance of being upheld if the Court determines that the programs only consider race as one factor in the admissions decisions. Justice Powell's opinion in Bakke recognized that using race as merely one factor in the consideration of an applicant was a less serious threat to the equal protection rights of the majority applicants than a quota system. He endorsed Harvard's plan over California's plan, observing that the former was "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."37 It is arguable that the University of Michigan does not use a quota system because it neither sets aside slots for minority students nor conducts separate admissions processes to consider the minority applicants. This will be a very close question. Although the University does not use a formal quota system like the one the Court rejected in Bakke, it seems at least to use race as a very important factor.

If the Court finds that the University's programs merely consider race as one factor in the admissions decisions, the Court may uphold the programs. In Metro Broadcasting, a majority of the Court held that the fcc could use race as one factor.38 The Court in Adarand did not expressly overrule this aspect of Metro Broadcasting. The question is whether, now that only Justice Stevens remains of the five justices in the Metro Broadcasting majority, the current Court will continue to endorse this principle. Justices Souter, Ginsburg, and Breyer are likely to join Justice Stevens in allowing the use of race as one factor in the admissions process. For example, in his dissenting opinion in Adarand, Justice Souter, joined by Justices Ginsburg and Breyer, stated that "[t]he Court has long accepted the view that constitutional authority to remedy past discrimination . . . extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination." Hurting some innocent members of the historically favored race "is a price to be paid only temporarily . . ."39

Of the remaining justices, Justice O'Connor probably is the most likely to provide the fifth vote. In her dissenting opinion in Metro Broadcasting, although she stopped short of endorsing the use of race as one factor in the decision-making process, she implied that it was less constitutionally suspect than using race as the sole or determinative factor.40


The outcomes in Grutter and Gratz are likely to hinge on whether Justice O'Connor will be willing to accept two separate propositions: (1) student diversity is a compelling interest for institutions of higher education, and (2) the use of race as one factor in the admissions process is necessary to obtaining this diversity. Either of these propositions, taken separately, would push her to the limits of her stated positions. Because both probably will be necessary to the Court's decision, she might be expected to vote with Justices Rehnquist, Kennedy, Scalia, and Thomas to strike down Michigan's programs. This result would be consistent with her previous votes; she voted to hold the affirmative action plans unconstitutional in all four cases she has heard.41

The current circumstances, however, might sway Justice O'Connor to vote with Justices Stevens, Souter, Ginsburg, and Breyer in upholding the University's programs. First, her previous statements indicate that her opposition is not as firmly entrenched as that of some of the other justices, particularly Justices Scalia and Thomas. In Adarand, writing for the majority, she stated:

Finally, we wish to dispel the notion that strict scrutiny is "strict in theory, but fatal in fact." The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it.42

Second, recent events will remind her that racism continues to be a reality in our society. On December 11, the Court heard arguments in Virginia v. Black, regarding the constitutionality of a Virginia statute prohibiting the burning of crosses. On December 27, Senator Trent Lott resigned from his position as Senate majority leader as a result of criticism following his statements arguably supporting racial segregation. These incidents may convince her that race still is a compelling issue, both for our society and on our nation's campuses.

In 1998, William Bowen, former president of Princeton University, and Derek Bok, former dean of Harvard Law School, published a book called The Shape of the River: Long-term consequences of considering race in college and university admissions.43 When Bowen and Bok discussed their book at a meeting of college and university professors, one professor in attendance suggested, "Your audience really is one person." That one person is Justice O'Connor.

1 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), cert. granted, 123 S. Ct. 617 (Mem) (U.S. Dec. 2, 2002) (No. 02-241).

2 Gratz v. Bollinger, 309 F.3d 329 (6th Cir. 2001), cert. granted, 123 S. Ct. 602 (Mem) (U.S. Dec. 2, 2002) (No. 02-516) (granting petition for writ of certiorari before judgment granted).

3 Grutter v. Bollinger, supra, n. 1; Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996); Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000).

4 Compare Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (rejecting diversity rationale) with Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) and Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000).

5 See Sup. Ct. R. 11.

6 See

7 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

8 Id. at 320.

9 Id. at 271-72.

10 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989).

11 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

12 See Adarand Constructors, Inc., 515 U.S. at 243-49 (Stevens, with whom Ginsburg joined, dissenting) (stating that affirmative action programs not the same as invidious discrimination); id. at 273 (Ginsburg, with whom Breyer joined, dissenting) (distinguishing between permissible and impermissible governmental use of race).

13 Adarand Constructors, Inc., 515 U.S. at 269.

14 Id. at 273 (Ginsburg, dissenting).

15 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 313 (1986) (Stevens, dissenting); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 601 (1990) (Stevens, concurring).

16 Adarand Constructors, Inc., 515 U.S. at 239 (Scalia, concurring in part and in judgment).

17 Id. at 240 (Thomas, concurring in part and in judgment).

18 Grutter v. Bollinger, 137 F. Supp. 2d 821, 870 (2001); see also Grutter v. Bollinger, 288 F.3d 732, 769 (6th Cir. 2002) (Clay, concurring).

19 Grutter v. Bollinger, 137 F. Supp. 2d 821, 831 (2001).

20 Id. at 855-56.

21 Id. at 868-69.

22 Id. at 853.

23 Croson, supra n. 10, at 507.

24 Grutter, 137 F. Supp. 2d at 825.

25 Id. at 836.

26 Bakke, supra, n. 7 at 310.

27 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 249-50 (1995).

28 Id. at 269.

29 Croson, supra n. 10, at 493.

30 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 612 (1990).

31 Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986).

32 See, e.g., Planned Parenthood v. Casey 505 U.S. 833 (1992); Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 (1993) (O'Connor, dissenting); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 551-52 (1991) (O'Connor, dissenting); Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197, 207 (1991) (O'Connor, dissenting).

33 Adarand Constructors, Inc., 515 U.S. at 231 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

34 See, e.g., Adarand Constructors, Inc., 515 U.S. at 237 (stating that strict scrutiny is strict in theory, but not in fact. "When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the 'narrow tailoring' test this court has set out in previous cases").

35 Croson, supra n. 10, at 509. (O'Connor's plurality opinion, joined by Rehnquist, White, and Kennedy).

36 Grutter v. Bollinger, 137 F. Supp. 2d 821, 832-33 (2001).

37 Bakke, supra n. 7, at 317.

38 Metro Broadcasting, Inc., supra n. 30, at 596-97.

39 Adarand Constructors, Inc., supra, at 269-70.

40 See Metro Broadcasting, 497 U.S. at 621, 630 (O'Connor, dissenting).

41 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990); and Adarand Constructors, Inc., v. Pena, 515 U.S. 200 (1995).

42 Adarand Constructors, Inc., 515 U.S. at 237 (quoting Fullilove at 519) (citations omitted).

43 William Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (1998).

ANN IIJIMA is professor of law at William Mitchell College of Law where she teaches constitutional, employment, and study skills courses. She is a graduate of the University of Minnesota Law School.