Discrimination: Law School May Continue to Consider Race

In a case that drew input of more than a half dozen amid curiae and was closely watched by law school admission staffs, a very fractured Sixth Circuit, sitting en banc, upheld University of Michigan Law School's admissions policy that make an applicant's race and ethnicity a factor in process. Seven of nine Sixth Circuit judges who heard constitutional challenge wrote separate opinions in Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), throwing in a load of court's dirty laundry surrounding its unusual decision to hear case en banc initially, rather than after a three-judge panel had rendered a decision. Dissenting Judge Boggs noted that this was first case in his 16 years on court to get express route to en banc review. Barbara Grutter, an unsuccessful applicant to University of Michigan's Law School, asserted in her class action that law school unlawfully discriminated in its admissions policy, which was drafted in 1992 to comply with U.S. Supreme Court's opinion in Regents of University of California v. Bakke, 438 U.S. 265 (1978). The policy states that it strives for a mix of students with varying backgrounds and experiences who will respect and learn from each other. The admissions staff not only considers usual criteria, such as Law School Admissions Test scores and undergraduate grade-point averages, but also looks at a number of soft variables, including enthusiasm of those recommending student and any unique talents or interests applicant may have. In administering policy, school does not set aside a certain number of seats for minorities, but tries to achieve a critical mass of under-represented minority students. School personnel testified that a critical mass of minorities is a number sufficient to enable those students to contribute to classroom dialogue without feeling isolated. According to law school's statistical expert, eliminating race as a factor in admissions process would dramatically lower minority enrollment. The prediction was that if race were not a factor, under-represented minority enrollment would have dropped from approximately 14.5 percent to just 4 percent of entering class in 2000. The district court ruled that law school's consideration of race and ethnicity in its admissions process violated 14th Amendment's equal protection clause and Title VI of Civil Rights Act of 1964. The court held that it was not bound by Justice Powell's conclusion in Bakke because that opinion did not enjoy assent of five justices. In Bakke, Justice Powell, applying strict scrutiny test, wrote that the attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education. On appeal, Sixth Circuit, in a majority opinion by Chief Judge Martin, in which only four members of en banc court joined, reversed. He stated that district court erred in not analyzing Bakke under Marks v. United States, 430 U.S. 188 (1977), which provides that holding of a fragmented U.S. Supreme Court is position taken by justices who concurred in judgment on narrowest grounds. Applying Marks to Bakke decision, Sixth Circuit majority determined that Justice Powell's rationale in Bakke, rather than Justice Brennan's views, offered narrowest grounds for court's judgment. Under Justice Brennan's concurring rationale, more permissive intermediate scrutiny standard would apply to benign racial classification, while under Justice Powell's rationale, more limited strict scrutiny would apply to all racial classifications. Relying on Powell position, Sixth Circuit majority determined that law school's consideration of race serves a compelling state interest in achieving a diverse student body through narrowly tailored means, as required to survive a constitutional challenge under equal protection clause. …