Category Archives: Affirmative Action

Bakke to Grutter: Where Are We Now? The Grutter Case

Barbara Grutter, a rejected applicant of the University of Michigan Law School, brought suit claiming that the University’s consideration of race and ethnicity in its admissions process violated her rights under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

During Grutter’s trial, there was ample evidence that showed the Law School did use race as a criteria in the decision-making process.  Dennis Shields, the Director of Admissions when Grutter applied, said race was considered “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body.”[1]

Erica Munzel, the Director of Admissions after Shields, defined “critical mass” to mean “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”[2]  Although Munzel did use the word “number,” she went on to say “there is no number, percentage, or range of numbers or percentages that constitute critical mass.”[3]  The Law School presented evidence that a diverse student body was necessary “to enhance classroom discussion and the educational experience both inside and outside the classroom.”[4]

The United States District Court, E. D. Michigan, ruled in Grutter’s favor.  The District Court held that the desire for a diverse student body was not a compelling government interest and even if it was, the policy was not narrowly tailored to further the objective since quotas were being used.  The District Court found

“…it significant that the dean and the admissions director monitor the school’s ‘daily admissions reports,’ which classify applicants by race.  These reports inform the reader how many students from various racial groups have applied, how many have been accepted, how many have been placed on the waiting list, and how many have paid a deposit.  There would be no need for this information to be categorized by race unless it were being used to ensure that the target percentage is achieved.”[5]

The District Court found this to be a quota system and was thus, unconstitutional.

In a brief of Amici Curiae, the Deans of several top law schools argued that a diverse student body was essential for the law schools to meet their mission of training lawyers across all fields of business, government service, etc.  The brief states that, “[a] diversity of backgrounds, life experiences, and cultural perspectives in the universities’ student bodies is essential to providing both a sound legal education for students and a firm foundation for graduates to serve and to lead thereafter.”[6]

Thomas Sowell, who writes about affirmative action, is not sure that diversity manifested by a “critical mass” of minority students is beneficial for all students.  Sowell argues that “the assumption that a ‘critical mass’ is not only academically beneficial, but academically essential, has become prevailing dogma without empirical evidence being asked or given.”  Sowell relies on

“[a] recent empirical study published by the National Bureau of Economic Research [that] found that ‘a higher percentage of Black schoolmates has a strong adverse effect on achievements of Blacks and, moreover, that the effects are highly concentrated in the upper half of the ability distribution.’”[7]

Although the United States District Court for the Eastern District of Michigan ruled in favor of Grutter, the decision was reversed by the United States Court of Appeals for the Sixth Circuit, which held that “…the Law School has a compelling interest in achieving a diverse student body.”[8]  The Court of Appeals also held that the “Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions program described approvingly by Justice Powell”[9] in the Bakke decision.

In coming to its decision, the Sixth Circuit returned to Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and concluded that the University of Michigan’s use of race in its decision making process did not constitute a quota and was constitutional.

Critics still claimed that “critical mass” was just a euphemism for quota and as such, was being used as more than just one criterion to attain a diverse student body. The Supreme Court granted certiorari.

In a 5 to 4 decision, the Supreme Court agreed with the Sixth Circuit.  On June 23, 2003, the Court upheld the University of Michigan law school’s program because it only considered race as a plus which could be used by the admissions committee in striving to attain the “critical mass” of minorities needed to enhance the educational environment of the law school.  This decision reaffirmed Bakke.

In the majority opinion, written by Justice O’Connor, the Court deferred to the judgment of the Law School’s admission committee that diversity was needed for the school to better meet its educational mission.  “Attaining a diverse student body is at the

Heart of the Law School’s proper institutional mission, and its ‘good faith’ is ‘presumed’ absent ‘a showing to the contrary.’”[10]

In a dissenting opinion, Justice Scalia argued that the compelling state interest was no more than the University’s desire to have an elite law school.  Justice Scalia pointed out that the school could easily attain class diversity by lowering its admissions requirements so that more minorities would be eligible for admission.  Justice Thomas agreed with Scalia.  In his opinion, Thomas wrote, “I believe blacks can achieve in every avenue of American life without meddling of university administrators.”[11]

Although lacking any solid evidence that diversity was needed for the school to meet its mission of training lawyers, the Court concluded that diversity should be considered a compelling State interest – at least in the Law School class.  This part of the decision has led to some criticism other than from the dissenting Justices.  As Alan Dershowitz writes:

[The Court] once again seemingly concerned itself far more with the description of the program than its actual application.  The Court began by clearing up a central ambiguity of Bakke, with at least five justices clearly holding that diversity could serve as a compelling state interest for affirmative action programs.[12]

The original criticism that a “critical mass” was just another descriptive term for “quota” was not clarified in Justice O’Connor’s majority opinion.  However, it appears that so long as a number is not used in describing what constitutes a “critical mass”, the use of race in the decision-making process will pass constitutional muster.  As Dershowitz concludes,

“The Court’s 2003 amplification of the Bakke principle in the Michigan case[] did little to clarify the underlying rationale for taking race into account as a means toward eventually achieving a “color-blind” society.  Nor did it satisfy critics who believe that diversity is a euphemism for “quotas,” or at least for “floors” for some groups (which, of course, become “ceilings” for others).  The most that can be said for th[is] decision[] is that [it offers] a pragmatic solution to a difficult racial problem that may have no perfect theoretical solution.[13]

The Michigan program did not have a two track system with numerical quotas for minorities.  Also, the Michigan system used race as just one of many criteria, similar to the Harvard plan which had already been found to not be offensive to the Equal Protection clause of the Fourteenth Amendment.  The decision of the Court is thus consistent with its dicta and holding in the Bakke case.  Justice O’Connor did provide a warning that she expected the use of “race” as a criteria for attaining a “critical mass” of minority students in graduate schools to be short-lived.  As she wrote in her majority opinion,

“Finally, race-conscious admissions policies must be limited in time.  The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable.  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[14]

Justice Thomas believes that the 25 year time limit is not justified.  He writes, “while I agree that in 25 years the practices of the law school will be illegal, they are, for the reasons that I have given, illegal now.”[15]

With this decision, affirmative action will be allowed in graduate school admissions decisions, at least for the near future.  The decision making process, however, will not be easy.  In an Associated Press report, Justin Pope points out that “[a]ffirmative action remains legally risky.”[16]  Admissions committees will be watched by opponents of affirmative action to see if any digital representation is used to describe the quest for a diverse class.  “In the last year, the threat of [] suits has persuaded a number of schools to cancel or open up summer, orientation and scholarship programs that had explicitly targeted minorities.”[17]

Proponents of affirmative action, although relishing the reaffirmation of Bakke, know that there are issues that still need to be addressed.  The NAACP is concerned that the Michigan ruling may not go far enough.

“Shaw, of the NAACP, says he is comforted by what he feels is a broad and deep commitment among educators to diversity, and an overall willingness to spend money on the hard work of doing it legally…[b]ut he remains worried about the legal uncertainty concerning how the Michigan ruling, which addressed only admissions, applies to scholarships for minorities.  And he notes continued skirmishing on the state level.  “We’re much better than we would have been had we lost,” Shaw said.  “But it’s one battle, and the war goes on.”[18]

The Grutter decision of 2003 reaffirms the Bakke decision of 1979.  Because the decision was close and the dissent was rigorous, the debates as to the constitutionality of affirmative action in regards to graduate school admissions continued.  Until there is further clarification, race can be used as one criterion of many in making admissions decisions for college and graduate school.  The Court was specifically dealing with medical and law schools in the decisions, but there is nothing in either opinion to rule out other graduate school programs from using the same criteria.  Until we hear otherwise, affirmative action in college and graduate school admissions decisions will pass constitutional muster so long as no digital representation of either a number or a percentage is used to describe the “critical mass” necessary to realize racial diversity in the matriculating class.

Since the Grutter decision, four new justices have been added to the Supreme Court.  Chief Justice John Roberts and Justice Samuel Alito were nominated by George W. Bush while Justices Sonia Sotomayor and Elena Kagan were nominated by President Obama. It can be predicted that these new justices are likely to split on the issue of affirmative action as it applies to graduate admissions; however, predictions are often wrong.

Even with Grutter, the lower courts have been struggling with this contentious issue. Since there is confusion, the Supreme Court has decided to listen to arguments and then, hopefully, clarify the issue of affirmative action; at least address its applicability to college and graduate school admissions. In Fisher v. University of Texas, arguments were heard on December 10, 2015. A decision on the Fisher case is expected this spring.

Actually, this will be the second time the Supreme Court will weigh in on Fisher. Originally, the U.S. Court of Appeals for the Fifth Circuit ruled that the University of Texas could use race as a factor in deciding college admissions. They agreed with the trial court which gave the University a summary judgment. The Supreme Court did not address the constitutionality of using race; instead they sent the case back because the lower courts did not use “strict scrutiny”[19] in evaluating the University of Texas admissions program.

When the Fifth Circuit again agreed with the lower court that the use of race was constitutional, the Supreme Court decided to re-hear arguments. It looked like the Court was ready to do away with affirmative action as to college and graduate school admissions. But now Justice Scalia has died and it appears that the Court is headed to a four to four split. With a split, the Fifth Circuit decision will hold; but only the courts in the Fifth Circuit will be bound to that decision.

[1] 123 S.Ct. 2325, 2333 (2003).

[2] Id.

[3] Id.

[4] Id. at 2334.

[5] 137 F.Supp.2d 821, 842 (2001).

[6] 2003 WL 554398 (U.S.)

[7] Thomas Sowell, Affirmative Action Around the World.  Yale University Press, 2004. p. 143.

[8] Grutter v. Bollinger, 288 F.3d 732, 739 (6th Cit. Court of Appeals 2002).

[9] Grutter v. Bollinger, 123 S.Ct 2325, 2335.

[10] 123 S.Ct. 2325, 2329

[11] Id. At 2350.

[12] Alan Dershowitz, America On Trial, Warner Books 2004, p. 426.

[13] Id. At 427.

[14] 123 S.Ct. 2325, 2330.

[15] Id. At 2364.

[16] Commercial Appeal, June 21, 2004, A1.

[17] Id. At A3.

[18] Id.

[19] In constitutional law, the standard applied to suspect classifications (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due-process analysis. Black’s Law Dictionary. Under strict scrutiny, the state must establish it has a compelling interest that justifies the law in question. Black’s Law Dictionary.





by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Bakke to Grutter: Where Are We Now?

Affirmative action in medical school and law school admissions decisions was deemed to be constitutional in the University of California v. Bakke and Grutter v. Bollinger Supreme Court decisions. However, there was a time limit mentioned in the Grutter decision.

With four new justices affirmed to the Supreme Court since Grutter, the time is ripe for a new look at the constitutionality of affirmative action in graduate and even undergraduate school admissions decisions.

In fact, the Supreme Court heard oral arguments in Fisher v. University of Texas on December 10, 2015 where affirmative action was once again the center of controversy.

A review of the jurisprudence of affirmative action on college and graduate admissions is timely and is especially pertinent to those of us who work in undergraduate and graduate medical education. In this article, we will review the Bakke case.



The history of affirmative action in graduate and undergraduate school admissions has been characterized by heated debate.  Proponents of affirmative action argue that it is necessary to ensure a diverse class make up which is essential in furthering the educational mission of colleges and graduate schools.  Proponents also claim that affirmative action is necessary to overcome past practices which have discriminated against certain groups and kept them from realizing the benefits of a college or graduate school education.

The critics of affirmative action claim the policy is nothing more than reverse discrimination, which, in turn, punishes applicants who are not a member of the targeted groups.  Critics also claim the policy of affirmative action violates the equal protection clauses of the Constitution and thus, is illegal.

In 1978, the Supreme Court addressed the issue of affirmative action in graduate school admissions in University of California Regents v. Bakke.[1] 

The Bakke Case

In 1973, Allan Bakke, a white male, applied to the medical school of the University of California at Davis (UC Davis).  Despite being a strong candidate, he was rejected.  Bakke’s rating of 468 out of 500 on the  UC Davis rating system was just below the 470 score needed for admission at the time his application was complete.  However, at the time he was rejected, there were still four slots available in a special admissions program, which were available to minorities as a racial and ethnic quota.  After his rejection, Bakke wrote a letter to Dr. George Lowrey, Associate Dean and Chairman of the Admissions Committee, claiming “…the special admissions program operated as a racial and ethnic quota.”[2]

When Bakke reapplied to Davis in 1974, his faculty interview by a quirk of fate was with Dr. Lowrey who found Bakke to be “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.”[3]  Dr. Lowrey rated Bakke at a lower level and, as a result, Bakke was again rejected for admission by the school.

“In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s.”[4]  For example, in 1973, Bakke’s grade point average was 3.51 with MCAT scores of 96 (verbal), 94 (quantitative), 97 (science), and 72 (general information).  This was compared to special admittees of 2.62, 46, 24, 35, and 33.  In 1974, the special admittees GPA and scores were 2.42, 34, 30, 37, and 18.[5]

After his 1974 rejection, Bakke filed a lawsuit in the Superior Court of California alleging that the special admissions program of the Medical School caused him to be rejected on the basis of his race.  Bakke claimed that his rights were violated under the Equal Protection Clause of the Fourteenth Amendment.[6]  Bakke also claimed his rights were violated under the California Constitution (Art. I, 21) and 601 of Title VI of the Civil Rights Act of 1964, but for the purposes of this paper, the first claim is dispositive.

The trial court held that the special admissions program violated the Federal Constitution based on the finding that the special program was functioning as a racial quota whereby minority applicants were being rated only against each other and there were 16 spaces in the medical school class being reserved only for them.[7]  However, the court denied Bakke’s request for an injunction to compel his admission to the school holding “…that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.”[8]

Because he had been denied admission to the school, Bakke appealed.

UC Davis appealed from (1) the decision that its special affirmative action program was unlawful and (2) from the order preventing the school from using race in making its admission decisions.  The Supreme Court of California took the case directly from the trial court “because of the importance of the issues involved.”[9]

The California Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment had been violated holding that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.”[10]   This court also held that since Bakke had shown that the school had discriminated against him because of his race, the burden of proof was on the school to show that he would have not been admitted even if there were no special admissions program.  Since the school conceded that it could not prove this issue, the California court directed the trial court to order Bakke’s admission to the Medical School.  The United States Supreme Court granted certiorari.[11]

In an opinion authored by Mr. Justice Powell, the Court held that: (1) the special admissions program of UC Davis was unconstitutional, but (2) race may be used as one of several factors by which a school can make decisions on admissions, and (3) affirmed the decision to allow Bakke to be admitted to the school.[12]

According to the Court, the fatal flaw of the UC Davis special admissions program was the quota of 16 slots reserved for the minority students, which resulted in a violation of individual rights of those applicants who would not be allowed to compete for those slots based solely on their race.  In its decision, the Court made clear that race could be used in a properly devised admissions program since racial diversity in the school’s case was a substantial state interest which would be legitimately served by taking race into account in the admissions process.

During arguments, UC Davis had four reasons to justify the special admissions program. These were (1) “[to reduce] the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession;” (2) countering the effects of societal discrimination; (3) increasing the number of physicians who will practice in communities currently underserved; and (4) obtaining the educational benefits that flow from an ethnically diverse student body.[13]

As far as the Supreme Court was concerned, the first justification immediately failed.  “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.  This the Constitution forbids.”[14]

Historically, any system designed to favor any particular group at the expense of others who were innocent of any perceived victimization of the favored group required certain findings.   The Court made clear that UC Davis was in no position to make such findings.  Justice Powell stated:

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.[15]

Only after such findings would the State’s interest be substantial enough to justify preferential treatment of the injured parties at the expense of so called innocent parties.  Also, the remedy chosen would have to be one which works the least possible harm to those who were now being discriminated against.[16]  The role of UC Davis was in education of medical students, not in correcting perceived societal wrongs.[17]

The Court, however, did concede that attainment of ethnic diversity in the student body was a constitutionally permissible goal for an institution of higher learning.[18]  “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.  The freedom of a university to make its own judgments as to education includes the selection of its student body.”[19]

The Court felt that genuine diversity would not be attained with the UC Davis program which looked only at race and ethnicity.  As an example of an admissions program which was tailored for diversity that would meet constitutional muster, the Court cited the Harvard College program.

“[At Harvard, w]hen the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.  A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.  Similarly, a black student can usually bring something that a white person cannot offer. [The] awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted…[20]

According to the Court, this system allows race to be used as a factor in the decision making process since it is not the sole criterion in deciding who will get that admissions slot.  There would be no unequal treatment under the Fourteenth Amendment with this system.  As Justice Powell noted in his opinion,

“[A] great deal of learning occurs informally.  It occurs through interactions among students of both sexes; of different races, religions, and backgrounds who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”[21]

The Bakke decision has been the law since 1978.  It is interesting to note what Supreme Court Justices have said about Bakke in subsequent decisions and writings.  In a commentary, current Supreme Court Justice Scalia said “Justice Powell’s opinion [is] ‘the law of the land.’”  1979 Wash. U.L.Q. 147,148 (1979).  Justice Stevens concurred in an opinion written by Justice Brennan, which cited Bakke whereby “a diverse student body contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which race-conscious university admissions programs may be predicated.”  Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990).

Justice O’Connor in Johnson v. Transp. Agency, 480 E.S. 616, 656 (1987) concurring “approv[ed] gender-conscious promotion where defendant ‘tried to look at the whole picture, the combination of [her] qualifications and [plaintiff’s] qualifications, their test scores, their experience, their background, [and] affirmative action matters.”

Over the next 20 years, debate continued.  Since the Fourteenth Amendment was involved, strict scrutiny needed to be applied if it was to be ignored.[22]  Was diversity of the student body a compelling enough State interest to allow a narrowly tailored race-based action whereby an individual’s race could be used to decide whether or not he would be admitted to graduate school?  Was Justice Powell’s decision just dictum, or was it to be the law of the land?

In subsequent decisions, disagreement occurred as to whether or not diversity of the student body was truly a compelling state interest.  In Hopwood v. Texas, [23] the Court of Appeals held that diversity of the student body is not a compelling state interest.  The Hopwood Court concluded “that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment.  Justice Powell’s argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case.”[24]

Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection.  Diversity fosters, rather than minimizes, the use of race.  It treats minorities as a group, rather than individuals.  It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.[25]

However, in Smith v. University of Washington Law School,[26]  the Court of Appeals held that diversity was a compelling State interest.  The Smith Court held that “the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.”[27]

Interestingly, before the Smith Court made its decision, the Washington State legislature passed Initiative Measure 200 which stated, “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”[28]

With the passage of this new legislation, the Law School voluntarily changed its admissions policy so that race was no longer a considered factor.

Since there was disagreement among appellate courts on this important question, the Supreme Court decided to better resolve the issues in the case of Barbara Grutter.

In my next article, the Grutter case will be discussed.



[1] University of California v. Bakke, 438 U.S. 265 (1978).

[2] Id. at 276.

[3] Id.

[4] Id.

[5] 132 Cal. Rptr. 680, 686.

[6] Section 1 of the Fourteenth Amendment states “. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[7] There was a total of 100 slots for the first year class.  Sixteen slots were reserved for minority students in the special admissions program although minority students were also allowed to compete for the other 84 slots.  The non-minority students were limited to competing for only the 84 slots.

[8] Bakke at 279.

[9] Id.

[10] Id.

[11] By granting certiorari, the Supreme Court agreed to hear arguments and rule on the issues.

[12] University of California v. Bakke. 438 U.S. 265 (1978).

[13] Ronald Rotunda, Modern Constitutional Law, West Group (2000), p. 661.

[14] Id.

[15] Bakke at 307.

[16] Id.

[17] In this regard, UC Davis’ selection of Negroes, Mexican-Americans, American Indians and Asians as the groups eligible for its special admissions program was difficult to justify especially in light of the fact that many Asians were eligible for admission under the regular admissions process. Id.

[18] Rotunda at 662.

[19] Id.

[20] Id. at 663.

[21] Id. at Justice Powell quoting from Professor Gurin, President of Princeton University

[22] Korematsu v. United States, 323 U.S. 214 (1944).  In Korematsu, pressing public necessity was the standard used to justify racial discrimination.  This was the first case to purport that strict scrutiny would be the standard used to justify any governmental discrimination based on race. Id.

[23] Hopwell v. Texas, 78 F.3d 932 (C.A.5 1996)

[24] Id. at 944.

[25] Id. at 945.

[26] Smith v. University of Washington Law School, 233 F.3d 1188, (C.A.9 2000)

[27] Id. at 1201.

[28] Wash. Rev. Code sec. 49.60.400(1).

Darryl S. Weiman, M.D., J.D.
Darryl S. Weiman, M.D., J.D.




by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016.