chapter  15
23 Pages

Why Strict Scrutiny Requires Transparency: The Practical Effects of Bakke, Gratz, and Grutter: Richard Sander


As the 2002-2003 term of the United States Supreme Court unfolded, few if any of its pending cases received as much media attention as the twin bill of affirmative action cases. In Grutter v. Bollinger and Gratz v. Bollinger, the Court had taken on two distinct challenges to affirmative action policies at the University of Michigan (UM). Barbara Grutter was challenging a racial preference system built into UM’s School of Law, and Jennifer Gratz was challenging the use of racial preferences by UM’s undergraduate admissions. Through the briefing, oral argument, and subsequent Court deliberations, most of the betting ran against the university. Recent Supreme Court decisions had struck down affirmative action plans in employment and contracting; a majority of the justices had records hostile to racial preferences in nearly all contexts. Moreover, most elite colleges and professional schools had been using racial preferences to favor minorities in admissions for over 30 years, and nearly everyone conceded that such programs should not persist indefinitely. On June 27, 2003, the Court announced both decisions. In Gratz v. Bollinger, a 6-3 majority of the Court ruled that UM’s undergraduate admissions system was patently unconstitutional; in Grutter v. Bollinger, the Court held by a slender 5-4 vote that the law school’s system survived constitutional scrutiny, but only subject to a number of constraints and only temporarily. On its face, this seemed like a stinging rebuke to the university’s policies and a considerable narrowing of the scope of affirmative action. Yet the front pages of newspapers across the country the next day showed a gleeful Mary Sue Coleman-the president of the university-literally jumping for joy on news of the decisions. The question must be asked: why was this woman smiling? The remarkably simple answer is this: President Coleman knew that, in practice, the Grutter and Gratz decisions would have little effect on the scale and effects of the university’s affirmative action policies. Indeed, as I will discuss in this chapter, Grutter and Gratz-along with their progenitor, Bakke v. University of California-have collectively had effects almost directly opposite to those articulated in the decisions. At least among public law schools in the United States, and at the University of Michigan’s undergraduate college

itself, racial preferences became larger, not smaller, after Grutter and Gratz; particular racial classifications became more, not less, determinative of admissions decisions; and for most schools, the entire process-far from doing away with “mechanical” admissions processes-became more mechanical than ever. An era when higher education would embrace race neutrality, which Justice O’Connor (the architect of Grutter) confidently predicted would arrive in the 2020s, now seems further away than ever. This is unusual: while Supreme Court decisions do not always have the sweeping effects implied by their words (Canon and Johnson 1999; Rosenberg 2008), they do tend to push on-the-ground behavior in the direction laid down by the Court. At worst, one would think, a Court holding would have no effect at all. So producing effects opposite to those pronounced by the Court is a remarkable, if dubious, legacy of Grutter and Gratz, and it makes these cases, along with their legal forebearers, interesting material for a case study in the exercise of judicial authority. Examining the on-the-ground effects of these decisions also helps us think about how the Court can operationalize the idea of strict scrutiny-the standard that, in theory, governs affirmative action law.