1. Lecture 42 Discrimination VI
Affirmative Action II

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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)