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Sam Heldman


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Tuesday, April 01, 2003
No. 02-241 Grutter v. Bollinger

No. 02-516 Gratz v. Bollinger

Here are the two University of Michigan cases. If you do not know what these cases are about then you must have been getting your Supreme Court news exclusively from this site, because every other place where you can find Supreme Court information has covered these cases extensively.They are about the use of affirmative action in the University of Michigan's undergraduate and law school programs. I have heard many opinions that the court will uphold the law school case and strike down the undergraduate case. The key difference is that the undergraduate school gives a number of "points" toward race. The number of points is very high. In fact a white student who was first in his class and got a perfect SAT would not gather as many points as a student who is a member of a racial minority.

The law school, on the other hand, considers race as one factor in attempting to achieve a "critical mass" of diversity. Critical mass is not necessarily defined, but it usually means at least 12% or so. People seem to think that the nebulous "critical mass" will be more easy for the Court to accept than the hard numbers represented by the undergraduate point system. On the other hand, the critical mass formulation really looks a lot more like a quota than the point system. The fact is that if you want to make more minorities competitive in undergraduate admissions in order to achieve diversity on campus, you have to figure out how much of a boost that would require. The number that results may not be pretty, because it reflects the sad reality of how disparate educational opportunities would be without such a boost. If the number results in a significant number of minorities becoming competitive, without being necessarily dispositive of all applications (e.g. all black candidates get in, or all black candidates get in up to a certain number or percentage), however then why should that not be narrowly-tailored to achieve the compelling interest of diversity?

The law school gets to decide, on a rolling admissions schedule, whom to admit. If race is considered in achieving a "critical mass," then shouldn't the law school stop considering race once it has achieved critical mass? That certainly looks like a quota.

Of course, it all seems to boil down to what Justice O'Connor will be willing to do. For once, I am not going to predict that the Court will split the baby. It is very tempting, and will probably mean that I will get yet another prediction wrong, but I predict the court will AFFIRM in both cases, upholding both programs.