Race-Conscious Admissions Programs: Where Do Universities Go from Gratz and Grutter?

I. INTRODUCTION Twenty-five years after Bakke and amid much uncertainty, the U.S. Supreme Court once again revisited the topic of race-conscious admissions.1 On April 1, 2003, the Court heard oral arguments in two cases challenging the constitutionality of affirmative action programs at the University of Michigan. On june 23, 2003, in Gratz v. Bollinger the Court struck down the University of Michigan's undergraduate admissions program. The Court held that the undergraduate program violated the Equal Protection Clause. In the Court's view, the undergraduate program was not narrowly tailored. On the same day, in Grutier v. Bollinger, the Court upheld the constitutionality of the University of Michigan Law School's admissions program. The common thread in both opinions was that the Court finally held, unequivocally, that the consideration of race is a compelling state interest in higher education admissions. Given the different results in Gratz and Grutter, universities may be confused as to how to develop a constitutional, race-conscious admissions program. The two decisions, however, actually provide a blueprint for universities that choose to consider race in admissions. Indeed, the difference between a permissible plan and an impermissible plan is in the details and is simply a matter of tailoring. This article discusses the reaction to the Supreme Court's recent Gratz and Grutter decisions and considers their implications. Specifically, this article examines how universities should consider race in their admissions programs in light of Gratz and Grutter. In order to set the context, Part II explains how the Equal Protection Clause analysis is used in affirmative action lawsuits. Part III reviews previous higher education cases in order to understand the history of affirmative action within the context of education. Part IV outlines more recent non-education affirmative action cases to emphasize how these cases are distinguishable from the affirmative action programs in higher education. Part V examines the Supreme Court's Gratz and Grutter decisions. Part VI discusses the reactions to the Gratz and Grutter decisions and Part VII considers some of the decision's implications for university admissions programs. II. THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT One of the most common arguments against race-conscious admissions programs is that these programs violate the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause states that no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.2 The Equal Protection Clause has been interpreted to mean that individuals ... be dealt with in a similar manner by the government.3 Race-conscious admissions programs have typically been challenged by white plaintiffs who claim that such admissions programs violate the Equal Protection Clause analysis because applicants (similar individuals) are given a preference based upon racial minority status (dissimilar treatment). When a court considers the constitutionality of a government action, it will apply one of three standards.4 The easiest standard to satisfy is the mere rationality standard.5 When the court applies this standard, it will uphold the governmental action if the government is pursuing a legitimate governmental objective and if there is a rational relation between the means chosen by the government and the state objective.6 The next level of review is known as middle-level review or intermediate scrunity. Under this standard, the governmental objective has to be important and the program adopted needs to be substantially related to the important government objective.7 Strict scrutiny is the highest standard of review used by the courts. Courts have reviewed racial classification cases, including, race-conscious admissions programs under strict scrutiny analysis. Under strict scrutiny, the state must first show that its decision to treat people differently is justified by a compelling state interest. …