United States: Supreme Court Provides Guidance On Affirmative Action

In two highly anticipated decisions handed down on June 23, 2003, the U.S. Supreme Court issued its latest rulings on the subject of race-conscious affirmative-action programs. Although the two decisions,

Grutter v. Bollinger and Gratz v. Bollinger, analyzed the admissions policies of a state university under constitutional standards that would not ordinarily apply to private entities, the Court’s rulings may affect private employers implementing affirmative-action programs mandated by government contracts.

The Supreme Court’s Ruling in Grutter v. Bollinger In Grutter, the Supreme Court addressed the University of Michigan Law School’s admissions policy, which included a race-conscious element aimed at enhancing the diversity of the student body. A Caucasian applicant who was denied admission to the law school challenged the selection process on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment and derivative statutory protections against racial discrimination. The challenged admissions policy considered each applicant’s grade point average and standardized test scores along with a wide range of additional factors, including, in some cases, race, in selecting a student body that was both academically qualified and capable of contributing to the law school’s commitment to an educational environment that embraced diversity. Significantly, the law school’s admissions policy did not define "diversity" solely in terms of race (although it did state an intention to include students from such historically discriminated against groups as African-Americans, Hispanics, and Native Americans). Moreover, the policy did not establish any numerical quotas or set-asides for minorities. Instead, it aimed to achieve a "critical mass" of traditionally underrepresented minority students, which was broadly defined as "meaningful representation" sufficient to encourage underrepresented minorities to participate in classroom discussions and not feel insolated. Race was merely one factor that could be considered in achieving that "critical mass."

Analyzing the law school’s admissions policy under the strict scrutiny standard applied to governmental race-based actions under the Equal Protection Clause, the Supreme Court held in a five-to-four decision that the policy was constitutionally sound. The Court first held that a state university’s interest in fostering a diverse student body was compelling and justified race-conscious affirmative action. In reaching this holding, the Court stated that its past rulings should not be read as limiting affirmative action to situations in which such action is necessary to remedy past discrimination. The Court then held that the law school’s admissions policy satisfied constitutional standards because it was narrowly tailored to serve the compelling interest in diversity without unduly harming members of any race.

In approving the law school’s admissions policy, the Court emphasized the policy’s individual assessment of each applicant’s potential contributions to a diverse student body and its flexibility to consider each applicant’s overall qualifications without making the applicant’s race the predominant feature of his or her application. The Court pointed out that the law school did not use a rigid quota or minority set-aside system, a form of affirmative action that the Court considered invalid in the context of a state university’s admissions program, although the Court suggested that less stringent numerical "goals" for minority participation are not necessarily inconsistent with the Equal Protection Clause. Thus, the Court recognized that some attention to numbers, such as the law school’s consideration of a "critical mass," will not automatically invalidate a race-conscious affirmative-action program. The Court also pointed out that the law school did not award predetermined, race-based bonuses to all minority applicants. Instead, a minority applicant’s race might be considered as a "plus" factor indicating the applicant’s potential contributions to a diverse student body, but other race-neutral factors such as fluency in several languages, overcoming personal adversity, and significant community service carried equal weight.

The Supreme Court held that it was not necessary for a state university to exhaust all race-neutral alternatives to achieving a diverse student body before adopting a race-conscious admissions program, but a university must give serious, good-faith consideration to race-neutral alternatives. The Court also held that a race-conscious admissions program must be limited in time, a requirement that can be satisfied by including in the program sunset provisions and periodic reviews to determine whether racial considerations are still necessary to achieve diversity in the student body. The Court found that the law school’s admissions program satisfied these requirements and passed muster under the Equal Protection Clause.

In contrast to the flexible and individualized use of race as a factor in law school admissions in Grutter, the University of Michigan’s undergraduate admissions program at issue in Gratz v. Bollinger automatically assigned to all underrepresented-minority applicants bonus points that had the effect of ensuring the admission of virtually all underrepresented minorities who were at least minimally qualified. A rejected Caucasian applicant challenged this practice on Equal Protection grounds. As in Grutter, the undergraduate school’s admissions program was aimed at increasing the diversity of the student body, a goal that justified race-conscious affirmative action. However, the Supreme Court found that the undergraduate school’s rigid point system was not narrowly tailored to achieve that goal. In holding that the admissions policy in Gratz violated the Equal Protection Clause, the Court emphasized that the program lacked any individualized assessment of the applicants’ potential contributions to the diversit y of the student body. Instead, the program awarded bonus points to all underrepresented minority applicants solely on the basis of race with the result that race became the deciding factor in the admission of virtually every minimally qualified African-American, Hispanic, and Native American applicant. Minimally qualified nonminority applicants, on the other hand, stood little chance of competing for the available admission slots no matter how strong their nonacademic qualifications might be or how much they might contribute to a diverse student body. Thus, the admissions program’s lack of individualized assessment proved fatal when analyzed under the Equal Protection Clause.

The Supreme Court’s Grutter and Gratz decisions will have their most immediate impact on affirmative-action programs implemented by state educational institutions. Although the decisions focus on affirmative action in university admissions programs, the principles discussed in these cases provide guidelines for structuring affirmative-action programs in other contexts, including employment. The Court’s announcement in Grutter that race-conscious affirmative action is not limited to situations in which action is undertaken to remedy past discrimination leaves the door open for affirmative-action mandates in connection with government contracts. Moreover, the Court’s comment that numerical "goals" are not inherently inconsistent with the Equal Protection Clause suggests that there will be no major overhaul to the basic "goals and timetables" structure of affirmative-action plans that federal contractors are required to implement pursuant to Executive Order 11246. The Grutter and Gratz decisions are, however, likely to lead to greater flexibility in government-implemented and government-mandated affirmative-action programs as public agencies seek to avoid the type of rigid, race-centric standards that were found to be unconstitutional in Gratz.