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Essay: Grutter V. Bollinger: Did Strict Scrutiny Fail the U.S. Court System?

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  • Grutter V. Bollinger: Did Strict Scrutiny Fail the U.S. Court System?
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I. Introduction

The Fourteenth Amendment to the United States’ Constitution has been in effect since 1868. Ever since this point in history, there has been a multitude of Supreme Court cases of which concern race. Since the 1950s, these cases have been predicated on practices that educational and employment institutions employ as guidelines for their admissions and hiring mechanisms prompting litigation over the guarantees of racial equality. The equal protection clause states that all states must ensure the “equal protection of the laws” to every person within its jurisdiction. Beginning with the ban of segregation in educational settings as a result of the Brown v Board of Education court case, the Court of the United States (SCOTUS) has been enabled to protect both racial and ethnic minorities when such groups face unfair practices that educational institutions utilize to bar, or limit these groups from admittance.

Affirmative Action was established in order to mitigate the effects of discrimination for the groups that suffer from such exclusion. Programs and policies that practice affirmative action attempt to rectify the historical discrimination of groups by creating a leveled playing field for all groups. But, affirmative action policies have proved to be controversial. Though these policies seek to create equality in both the educational and employment realms, they often favor a specific group of individuals at the expense of the rest of the population. In doing so, there have been times in which these policies have caused individuals to challenge the system.

In 1978, Alan Bakke disputed the University of California Davis’ decision to twice deny his admission to its medical school. As a white applicant to the medical school Bakke’s MCAT score – a primary factor considered for medical school admissions – was higher than many of the minority students that had been admitted in both of the years that he applied to UCAL Davis. Bakke then brought the facts to court, alleging that he was denied admission to the school as a result of racial influences, which if proven, would directly violate the Equal Protection Clause of the Fourteenth Amendment. From 1978 forward, the Court’s decision to defend affirmative action in the Bakke V. Regents of UCAL Davis case set three affirmative action standards in stone: that there must be a compelling state interest in the educational benefits that are experienced as a result of educational diversity (this compelling interest must survive strict scrutiny), that the use of a quota system in an admissions process is unconstitutional, and that race cannot be utilized as the deciding, or sole factor in a process that determines an applicant’s merit for acceptance. The most important aspect of Bakke is that Justice Powell declared that scrict scrutiny review would govern affirmative action jurisprudence.

Though the Bakke case set a precedent for future affirmative action policies to abide by, controversy in these policies still exist today. Grutter V. Bollinger does not follow the precedent set by Bakke, as the Critical Mass Theory used in the University of Michigan’s (U of M) admissions program establishes a disquised quota that inherently causes the program to fail one of three standards set forth by case’s jurisprudence: that the use of a quota system in an admissions process is unconstitutional. In 2003, white law school applicant Barbara Grutter brought the facts of her rejection to the U of M Law School to court. With a Law School Admission Test (LSAT) score of 161 and a Grade-Point-Average (GPA) of 3.8, Grutter proved to be a strong candidate for acceptance to the University, but later learned that she was placed on the school’s waitlist. She claimed that race was used as a deciding factor when evaluating her eligibility for admission. After doing so, the Court concluded that the Equal Protection Clause does not limit the U of M Law School’s ability to achieve the critical mass of minority students that it desires to compose its class demographic. The Court found that the means by which the school attains this critical mass are narrowly tailored enough to further the institution’s compelling interest in the educational benefit derived from a diverse class.

Grutter yielded a compelling state interest as identified by the Court; however, the U of M Law School did not investigate potential race-neutral alternatives to the admissions process employed when Barbara Grutter applied. It is evident that the school uses a form of Critical Mass Theory in order to achieve a compelling state interest. I have found that this utilization is inherently unconstitutional as it allows admissions counselors at Michigan to implement a hidden quota system that is aimed at balancing racial inequalities at the school. Though this system appears to have an undefined goal of an exact number of students it seeks to admit, I will argue that there is a clear failure of strict scrutiny due to the admissions result the system yields, and because alternatives to the race-conscious admissions process were not explored prior to implementing this system.

II. The Implications of Strict Scrutiny

Historical Court rulings have established Equal Protection Jurisprudence that must be applied when assessing the validity of the Grutter case. Such jurisprudence holds that schools that choose to employ racially-based admissions policies must ensure that these policies are narrowly tailored to achieve the compelling state interest at hand. Policies must survive strict scrutiny, which is a stringent method of review designed to determine whether a constitutional right or government interest should hold more weight in a Court decision. In Grutter, strict scrutiny was utilized in order to deem whether the benefits derived from educational diversity should bear more importance than the implications of equal protection. Under this standard of review the Michigan Law School is responsible for proving that its admissions process was used because the school found a compelling state interest (the educational benefits that are derived from a diverse class) in using its admissions process and that the process is narrowly tailored to achieve this interest. Based on equal protection jurisprudence, the school must also demonstrate that race-neutral alternatives cannot accomplish that of which the admissions process in place does.

III. What is a Compelling State Interest?

Affirmative action jurisprudence dictates that educational institutions have a compelling state interest in promoting the educational benefits that flow from a diverse student body. This compelling state interest is found in the First Amendment to the Constitution. Prior to Grutter, Justice Lewis Powell noted that while diversity furthers a compelling state interest and that race and ethnicity are important contributors, diversity is achieved through a multitude of both characteristics and qualifications that are not strictly limited to racial or ethnic factors. Powell’s holding in Bakke stated that the compelling state interest in student body diversity can justify the use of race as a factor in university admissions if a more narrowly tailored program is used, “such as one that [gives] pluses to minority applicants rather than putting them into a separate admission track.” Powell’s holding was later reaffirmed in Grutter. Here, the Court not only supported Powell’s holding, but added that the use of Critical Mass Theory was similarly narrowly tailored enough to survive strict scrutiny. The majority opinion in this case stated that the benefits from the Law School’s admissions process are “substantial” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” as a result of a variety of student backgrounds.

It is these benefits that the U of M Law School is aimed at achieving. But, under strict scrutiny the method the school chooses to employ must be the most restrictive way of doing so in order to be narrowly tailored. Through the Court’s use of strict scrutiny, it was found that there is both a compelling state interest and that the use of a Critical Mass Theory was consequently narrowly tailored.

IV. Critical Mass Theory vs. Quota Systems

A. Failing to Survive Strict Scrutiny

Critical Mass Theory is one of the concepts that the U of M Law School employed in order to attain the educational benefits that are yielded by a diverse class of students. A “critical mass” is defined by a significant number of diverse students that are needed to motivate minority students to contribute to classroom discussion. The school’s Director of Admissions, Dennis Shields, acknowledged that a critical mass is needed in order to ensure that minority students do not feel isolated in the classroom. Shields supports the notion that if underrepresented students feel isolated, that the benefits that arise from diversity will not be attained. Justice O’Connor’s ruling explains that the Law School’s aim to attain a critical mass is not representative of a quota system as seen in Bakke. The Court’s conclusion to uphold the School’s critical mass policy was based on the majority belief that the admissions policy only partially focuses on numbers.

But, how should the Court define what a critical mass actually is? Based on the Court’s support in upholding Michigan’s policy, it is clear that the understanding of a critical mass is quite ambiguous. Though the purpose of critical mass theory has important intentions, it is the language used to describe the concept that makes its use questionable. If the theory was more strictly defined, a narrowly tailored restriction would have been present within the admissions policies. In Fisher V. University of Texas at Austin, the Court ruled that the school’s admissions policies were not measurable, and thus that a quota system did not exist. While representing the school, Liliana M. Garces defined critical mass as requiring “the conditions needed for meaningful interactions and participations among students,”. This provided the support needed for a principled explanation provided by the University to exhibit that their policy was not measurable. Using such jurisprudence in Grutter, the Court found that Critical Mass Theory could not be quantified without a regard for the educational purpose that it serves. As aforementioned, the lack of appropriate definition for this theory complicates the Court’s ruling on the case. As Justice Scalia once stated in regard to Fisher, critical mass theory should be called something else because a mass assumes an exact amount regarding numbers or a weight. Critical Mass Theory has historically turned into a “critical mess.”

Chief Justice Rehnquist’s dissent in Grutter concludes that the school’s policies do pay more attention to numbers when regarding minority enrollment than acknowledged. Rehnquist’s support for this claim lies in the Law School’s acceptance rate of both the African American and Native American populations that applied to the school between 1995-2000. Rehnquist finds that over this time period, the admission of African American students decreased from 9.7% of the class to 7.5% of the class, and that the Native American admissions rate virtually did not change, hovering around 1% of the class total. Given that the acceptance rates are relatively consistent across both minority groups, in that the school admitted nearly the entirety of both applicant pools over this time period, Rehnquist finds that the school paid more than “some attention” to numbers, and indirectly created a quota system as a result. He provides support for this claim by stating that if the race of each applicant were not considered, that the measurable decrese between the minorities studied would vary significantly – of which was not observed statistically. It is clear that the Court deemed this constitutional due to the confusing nature of a critical mass. The appropriate action that the Court should have taken is to rule that the use of Critical Mass Theory to fulfill a compelling state interest is unconstitutional due to the indirect quota established. Because the Court did not prove that the use of this theory is the only way to achieve campus diversity, there is a blatant failure of strict scrutiny review in Grutter.

B. Counterargument

The majority opinion delivered by Justice O’Connor reasoned that because the review of each applicant is highly individualized, that an acception or rejection of a student cannot certainly be based on the sole variable of race, and as a result that the admissions process considers all factors that could contribute to the diversity of its class. Though O’Connor and the majority felt that this is the case, I believe that Justice Rehnquist’s argument in his minority dissent is more compelling. Rehnquist’s minority opinion provides blatant proof that the Law School paid more than “some attention” to numbers when admitting minorities. The tight correlation that he provides relating to percentatge of applicants and those admitted of each race observed, show that the school was very careful in racially balancing its classes. This bears sufficient reasoning as to why O’Connor’s opinion is factually incomplete.

V. Were Race-Neutral Alternatives Explored?

A. Fisher Jurisprudence

Due to the aforementioned concerns regarding the Court’s ruling, it is clear that the Court should have sought out other solutions to rule on the case. In order to sufficiently withstand strict scrutiny review, the Law School legally should have been required to prove that the educational benefits yielded from a diverse class of students could not be achieved through any other means of admissions policy.This is because Fisher II confirmed that universities must prove that race is used as a factor of admissions only as necessary to meet the goals of affirmative action. When Erica Munzel testified on behalf of the law school, she insisted that race must be taken into account in order to achieve the critical mass the school desires because such a mass could not be attained if based solely on hard factors such as an applicant’s GPA and LSAT score.

In Fisher, the Court ruled that an admissions process based on both hard and soft factors is constitutional. Hard factors are the classic attributes that are focused on in all educational applications: GPA and test scores. The University of Texas (UT) set a threshold for both GPA and LSAT score. Under this system, soft factors include things like the quality of an applicant’s undergraduate institution and recommendations. An admissions process that follows these guidelines not only takes into account academics and personal attributes, but also allows for an interview process that provides students with an opportunity to supplement their application in ways that cannot be seen through the submission of an application. UT provided evidence that these factors and its “Top Ten” admissions percentage policy based on class rank were not adequate in meeting the school’s diversity goals when standing alone. Becaue the school explored these options, it was able to permissibly consider race as one of a broader set of factors. By testing the result of the above policies, the U of M Law School could have altered its admissions processes to ensure that race is solely one factor taken into consideration, rather than a factor that stands alone when determining whether or not an applicant will contribute to campus diversity and consequently educational benefits.

B. Special Programs

Fisher II enables universities to adopt affirmative action programs that meet consitutional requirements; however, the U of M failed to explore alternative options before asserting its interest in a critical mass of racial minorities. To help aid the enrollment of minorities, the school could have implemented a certification program in which they could dictate requirements students have to fulfill to be eligible. These requirements could include requisites such as a necessity to take pre-law classes. A program like this would allow for a portion of class seats to be filled seperately from the general applicant pool. Moreover, the Law School could have partnered with racially diverse and economically disadvantaged schools to provide academically accomplished students from these schools an opportunity to be admitted. Because students of any race or ethnicity can apply to these two alternative options, they are racially blind. The Court had ruled such systems constitutional, and thus it is evident that strict scrutiny failed in the case of Grutter as Critical Mass Theory was employed prior to exploring a dissimilar option.

VI. An Alternative Point of View

There is an inherent problem with the U of M Law School’s admissions process, but some may argue that there is a problem with law school admissions as a whole. The LSAT is an admissions test that is aimed at reflecting the merit of prospective students; however, it has been found that historically the test has reflected poorly on minority populations, and specifically on African Americans. In fact, Justice Thomas claimed that no law school has the right to be ignorant of the fact that as a whole, blacks perform relatively poorly on the LSAT. This statement gives way to the fact that minority underrepresentation in law schools has been caused by the very test that dictates their admissions. Retrospectively, schools like the U of M are forced to use affirmative action in order to mitigate the effects of the racial gap. This causes me to believe that the law school admissions system should be questioned as a whole.

If the trend of schools closing the test’s inherent racial gap continues, I believe that universities should consider not taking the LSAT into account, as it not only causes affirmative action problems, but also is not necessarily an indication of whether or not a student will be able to pass the Bar Examination later on in their academic careers. Perhaps schools should consider using the GRE, a test used for a multitude of graduate programs, in place of the LSAT. Whether or not this occurs, this topic is certainly a grey area.

VIII. Conclusion

It is known that Court decisions are often controversial, and the Court’s ruling in Grutter certainly contributes to this theme. What is certain is that the educational benefits that flow from a diverse classroom setting are a justified, compelling state interest present in the U of M Law School’s admission policies. The Court established this conclusion as a result of the affirmative action jurisprudence that was set forth due to the Court’s ultimate decision in Bakke, in which such a compelling state interest was first found. What has not been clear over the fourteen years that have elapsed since the Grutter ruling is whether or not the Court’s decision in this case was ruled both legally and appropriately. In this paper I have found that though the Court could have found the appropriate means to arrive at the same ruling, that the majority opinion ruled incorrectly in that the school’s use of Critical Mass Theory is inherently not narrowly tailored to fulfill a compelling state interest. Additional affirmative action jurisprudence is recognized due to the implications of the Fisher cases. It is here that the Court deemed that race-conscious admissions policies that achieve compelling state interests by using quota systems, are unconstitutional.

As previously discussed, the ambiguity of Critical Mass Theory is what effectively allowed the Law School to take advantage of a disguised quota system. Though the admissions policy does not state a blatant quota that it is aimed at reaching, Critical Mass Theory allows the system to virtually accomplish the same result. Ultimately, the Court did not explore the possibility that other race-neutral alternatives could have arrived at the same compelling state interest. Affirmative action jurisprudence provides that color-blind alternatives to a race-conscious policy must be sought prior to enforcing the latter. Because this did not occur, strict scrutiny has not been sufficiently met. Consequently, I find that the Court’s ruling in Grutter V. Bollinger is not justified by the means that the Court has used to rule on the case.

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