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    Grutter Summary
    SIXTH CIRCUIT UPHOLDS UNIVERSITY OF MICHIGAN’S LAW SCHOOL AFFIRMATIVE ACTION POLICY (Provided by NAACP)

    Summary

    By a vote of 5 to 4, the full, en banc United States Court of Appeals for the Sixth Circuit found today that the University of Michigan’s law school policy of considering race as one of many factors in deciding which students to accept is constitutional. The decision in Grutter v. Bollinger reversed a district court’s ruling in March, 2001 that the University’s law school admissions policies were illegal because they were not clearly defined and relied too heavily on race. The Sixth Circuit found that the University’s interest in achieving a diverse student body is compelling and that its admissions policy is “narrowly tailored” to serve that interest. The decision thus ensures that minority applicants will continue to have access to the elite public institution. Last December, the full court heard oral arguments on challenges to the University’s admissions programs in both the undergraduate and the law schools. The decision today pertains only to the case involving the law school. The challenge to the undergraduate admissions policy, in Gratz v. Bollinger, will be the subject of a separate opinion from the Sixth Circuit that is forthcoming. With a split among appellate courts – the Fifth and Eleventh Circuits recently rejecting race-conscious admissions policies while the Ninth and now the Sixth Circuits approving of such policies – it would appear likely that the Supreme Court would agree to hear the Michigan case and resolve this split among the courts and decide whether its landmark Bakke case remains the law.

    A bullet-point summary of the law school’s admissions policy, and the majority and dissenting opinions follows below.

    The Law School’s Admissions Policy

    • Law school admissions policy was adopted by full faculty in 1992 and intended to comply with Bakke: goal is to admit “a group of students who individually and collectively are among the most capable students applying to American law schools in a given year”
    • As part of Law School’s policy of evaluating each applicant individually, officials read each application and factor all of the accompanying information into their decision: Law School thus takes into account an applicant’s Law School Admissions Test results and Grade Point Average as well as other factors, such as the enthusiasm of an applicant’s recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, residency, leadership and work experience, unique talents or interests, and difficulty of undergraduate course selection
    • The Law School’s admissions policy describes a “commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have historically been discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers”
    • In considering race and ethnicity, the Law School does not set aside or reserve seats for under-represented minorities; what the Law School does do is consider the number of under-represented minority students, and seek to enroll a meaningful number, or a “critical mass”
    • A “critical mass” is a number sufficient to enable under-represented minority students to contribute to classroom dialogue without feeling isolated or like spokespersons for their race
    • The Law School offered evidence at trial that the elimination of race/ethnicity as a factor in the admissions process would dramatically lower minority admissions

    Majority Opinion

    • written by Chief Judge Boyce F. Martin, Jr. (Carter appointee), and joined by Judges Daughtrey, Moore, Cole, and Clay (all Clinton appointees)
    • law school joined on appeal by intervenors consisting of 41 individuals and three student groups, United for Equality and Affirmative Action, the Coalition to Defend Affirmative Action By Any Means Necessary, and Law Students for Affirmative Action
    • Intervenors offered additional justification for Law School’s consideration of race and ethnicity – remedying past discrimination.
    • Because the Majority held that the Law School has a compelling interest in achieving a diverse student body, it did not address whether the Intervenor’s proffered interest in remedying past discrimination is sufficiently compelling to provide a separate constitutional basis for upholding the admissions policy
    • There is a two-part legal test that the Court applied in its evaluation of the constitutionality of the admissions policy: (1) the consideration of race must serve a compelling state interest, and (2) it must be narrowly tailored to achieve that interest
    • Court first found that the Law School’s interest in achieving a diverse student body is compelling
    • It reviewed the Supreme Court’s fragmented decision in Bakke, and found that – as the only Supreme Court case that specifically addressed the permissibility of racial classifications in academic admissions programs – it (and Justice Powell’s opinion that diversity is a compelling state interest) remains binding as precedent until the Supreme Court instructs otherwise
    • Court next found that the University’s admissions policy was narrowly tailored and therefore constitutional
    • It found that Law School does not employ a quota for under-represented minority students; it does not reserve or set aside seats; thus a “critical mass” is not the equivalent of a quota as the Law School has no fixed goal or target
    • Law School considers race and ethnicity as a potential “plus” factor, or one element among other elements, but all applicants compete against all other applicants
    • Law School adequately considered race-neutral alternatives
    • Some degree of deference must be accorded to the educational judgment of the Law School in its determination of which groups to consider
    • An interest in academic diversity does not have a self-contained stopping point and the fact that the Law School does not have one does not render its policy constitutionally defective
    • Majority reverses the judgment of the district court and vacates the injunction prohibiting the law school from considering race and ethnicity in its admissions decisions – the Court had granted a “stay” of this injunction during the pendency of the appeal so that the Law School could continue to consider race and ethnicity
    Dissenting Opinion

    • Principal dissenting opinion by Judge Boggs (Reagan appointee) (joined by Judge Batchelder (Bush appointee) in full and Judge Siler (Bush appointee) in part)
    • Dissent called the Law School’s admissions policies “a straightforward instance of racial discrimination by a state institution” and contended that “other than in the highly charged context of discrimination in educational decisions in favor of ‘underrepresented minorities’ the constitutional justifications offered for this practice would not pass even the slightest scrutiny”
    • Dissent does not doubt there are “strong policy arguments for what Michigan has done” but Equal Protection Clause and its prohibition of racial classification forbids it as a matter of law
    • Dissent contends the Majority’s reading of Bakke is erroneous and that, while Bakke remains good law, it does not conclusively resolve the questions before the court
    • The state’s interest in a diverse student body, at least as articulated by the Law School, cannot constitute a compelling state interest sufficient to satisfy strict scrutiny
    • Even if student diversity were a compelling state interest, the Law School’s admissions policy is not narrowly tailored to that interest: “A cursory glance at the Law School’s admissions data reveals the staggering magnitude of the Law School’s racial preference. Its admissions officers have swapped tailor’s shears for a chainsaw.”
    • Dissent offers that it could “conceive of racial preferences in admission that are narrowly tailored to achieve some diversity in education, the Law School’s plan is not among these”
    • Dissent argues that the efforts to achieve a “critical mass” are functionally indistinguishable from a numerical quota
    • Dissent concedes that “race does matter in American society” but rejects defense of the Law School’s policies on the basis of remediating generalized past discrimination
    • Dissent offers a “procedural appendix” which, although not directly affecting the legal principles discussed in the case, attempts to explain his version of the manner in which the case came to be heard by the full court in an initial hearing en banc
    • Dissent contends that the Court’s internal rules and policies were violated: Judge Moore and Clay, in concurring opinions, reject these contentions, expressing regret that the dissent has chosen to air these concerns publicly, and claiming that the dissent’s opinion “marks a new low point in the history of the Sixth Circuit”


     

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