Lecture 42 Discrimination VI Affirmative Action II

This Lecture Pages 660-669 Affirmative Action II Grutter v. Bollinger (2003) Fisher v. Texas (2016) Read syllabus of case Application of Strict Scrutiny as a rule

Grutter v. Bollinger (2003) Background Challenge to the admissions system in the Michigan Law School Grutter was denied admission and blamed it on racial preferences However, this is one of the country’s top law schools, thus very selective The Law School wanted a “critical mass of minority students” to achieve the benefits of a diverse student body those groups needed special consideration No points system was used, applicants decided individually An expert said without this, minority acceptance would have dropped from 35% to 10% The University lost in Gratz, which used a points system Court said it was not individualized, thus not narrowly tailored Race thus had become the decisive factor in admissions

Grutter v. Bollinger- II Arguments For Grutter Bakke is not precedent Critical mass equals racial quotas, and this creates a dual track program Not narrowly tailored because there is no durational limit on the program For Bollinger (University of Michigan) A diverse student body is a compelling state interest There are no race neutral alternatives to achieve this goal This is not a quota system since the decisions are individualized It is rational to tailor this to minority students

Grutter v. Bollinger- III O’Connor, J. for a 5-4 Court She notes that policy and precedent have been modeled after Powell’s opinion He approved of the justification for a diverse student body (compelling state interest) She notes some of the benefits, and notes the large number of amicus briefs, and experts But race can only be among many factors considered in admissions 14th Amendment protects individuals not groups heightened scrutiny applies She notes that they will be deferential to the university within limits

Grutter v. Bollinger- IV More from O’Connor, J. To be narrowly tailored it cannot be a quota system, but can be a “plus” flexibility She sees no quota because there are no reserved seats or a two tiered system She notes many things other than GPA and test scores play a role for all applicants Narrowly tailoring does not mean that all race neutral alternatives must be exhausted first But must be done in good faith But must not unduly burden any racial group (including non-minorities) She does say that these programs will have to end a some point (25 years?) She also notes that some states have found other ways to achieve a diverse student body when race has been prohibited by law from consideration

Grutter v. Bollinger- V Rehnquist, C.J. dissenting, joined by Scalia, Kennedy, and Thomas, JJ. He does not believe that this program is narrowly tailored to the interest asserted Critical mass is really racially balancing He questions why there is a critical mass number different for different racial minorities Are they less isolated or spokesperson for their race? He thinks this is really a masked quota system He also seems to wonder why there is a difference from Gratz here

Grutter v. Bollinger- VI Kennedy, J. dissenting He notes that the university has a heavy burden He wonders why if there is individualized consideration that there seems to be about the same breakdown of each class racially over the time span He notes the admissions committee looked a daily reports showing racial breakdowns He sees this really as a quota system as well He finds it is not based on individualized assessments, thus it does not qualify as a compelling state interest

Grutter v. Bollinger- VII Thomas, J. concurring in part, and dissenting in part, joined by Scalia, J. He begins by quoting Frederick Douglass He sees this deference as incompatible with strict scrutiny He thinks if the situation were reversed racially persons would object He thinks this system is illegal now, not 25 years from now He sees places that use color blind admissions succeeding in diversity One does not have to strictly rely on the LSAT He also sees as this giving minorities and inferiority complex That they may be seen as only admitted because of these programs They therefore become the beneficiaries of racial discrimination

Schutte v. BAMN (2014) Schutte v. BAMN (2014) The Court by a 6-2 ruling, said that Michigan voters could vote to ban all racial preferences and affirmative action in public employment and public university admissions policies Voters could institute affirmative action policies and end them too

Fisher v. University of Texas (2016) Background Texas adopted the Top 10% rule Meaning that all students graduating in the 10% of their high school were to be granted admission to the University of Texas The remaining slots would be given out based on other factors, including race Fisher was not in the top 10% of her high school, and was denied She said it was race based that she did not get in This case was in the courts for a while The original case in 2013 was sent back to the lower courts with the instructions to apply strict scrutiny She loses again at the 5th Circuit and appeals again By this time she had already graduated from Louisiana State University

Fisher v. University of Texas- II Arguments For Fisher This amounts to a quota system The race neutral top 10% plan is sufficient For Texas This plan meets the doctrine laid out in Grutter This case was decided by only 7 justices Scalia had died after oral arguments Kagan recused herself because she had worked on Fisher I as Solicitor General

Fisher v. University of Texas- III Kennedy, J. for a 4-3 Court The Court upholds the Texas plan This plan met all the requirements It served the compelling state interest of a diverse student body It did not add up to a quota system, but was holistic in its approach They showed why previous race neutral plans had not been successful Least restrictive means others had been tried and failed He did note that the University should monitor to see when this affirmative action program might not still be necessary They should constantly checking their numbers This is one of a number of cases lately where Kennedy ruled for minority groups

Fisher v. University of Texas- IV Alito, J. dissenting, joined by Roberts, C.J. and Thomas, J. He thinks the Court did not apply the strict scrutiny it called for in Fisher I Thomas, J. dissenting Use of any race in admissions violates the Equal Protection Clause We can expect more of these cases to work their way through the circuits As usual, the key for any program to survive (as of now) will be Kennedy If Kennedy retires and is replaced by another Trump justice, it is likely few will survive

Next Lecture Pages 669-688 Gender Discrimination Reed v. Reed (1971) Intermediate Scrutiny Reed v. Reed (1971) Craig v. Boren (1976) United States v. Virginia (1996)