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Professor Susan Low Bloch
Georgetown University Law Center

On June 23, 2003, the United States Supreme Court issued two extremely significant affirmative action cases. In one, Grutter v. Bollinger, the Court upheld the admissions program of the University of Michigan Law School. In the other, Gratz v. Bollinger, the Court found unconstitutional the admissions program of the Undergraduate School of the University of Michigan. This note will examine the Court痴 opinions in these two cases and will then assess their significance.

Let痴 start with some context. The Supreme Court first addressed the issue of 殿ffirmative action or 澱enign discrimination programs[1] in 1978 in Regents of the University of California v. Bakke[2]. In that landmark case, Allan Bakke, a rejected white applicant, was challenging the University of California at Davis admission policy of reserving 16 of its 100 seats in the medical school class for certain minority students. In a very confusing set of six opinions, four Justices concluded that the program was constitutional[3]; four others held that it violated federal law[4]; and Justice Louis Powell alone said that consideration of race was not necessarily unconstitutional but that quotas were[5]. The result in the case, with Justice Powell痴 opinion controlling the outcome, was that there were five Justices who said race could be considered in school admissions, but also five Justices who struck down the particular program at issue.納6]

For the next seventeen years, the Court debated about the appropriate standard by which to assess the constitutionality of these affirmative action programs. Finally, in 1995, in a 5-4 decision in Adarand v. Pena[7], the Court held that strict scrutiny was the appropriate standard for all governmental programs based on race, including those designed to help, not hinder, unrepresented minorities[8]. As is well-known, under strict scrutiny, those defending a program against an equal protection challenge must show that the program is narrowly tailored to serve a compelling government interest[9].

But until the Michigan cases, the Court had not had an opportunity to explain what strict scrutiny means in the context of affirmative action programs[10]. Would it be as strict as the scrutiny utilized to judge programs that disadvantage minorities so that, in the words of the late Gerald Gunther, it will be 都trict in name but fatal in fact? [11] Or would the standard applied to these 澱enign discrimination programs be less strict? In Justice Sandra Day O辰onnor痴 concurrence in Adarand, she specifically noted that in the context of affirmative action or benign discrimination, strict scrutiny would not necessarily be fatal[12]:

Strict scrutiny is the proper standard for analysis of all racial classifications whether imposed by a federal, state or local actor. .. [But] it is not true that strict scrutiny is strict in theory but fatal in fact. The government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country[13].
Finally in 2003, the Michigan cases presented the Court with its first opportunity to address the question of the constitutionality of affirmative action programs in higher education since Bakke, as well as the first opportunity to apply the strict scrutiny test mandated by Adarand. As noted, there were in fact two different University of Michigan programs under attack: Barbara Grutter v. Lee Bollinger[14] challenged the law school痴 admissions program[15] and Jennifer Gratz and Patrick Hamacher v. Lee Bollinger[16] challenged the undergraduate school痴 admissions program[17]. The University defended both programs by arguing that they were designed to achieve a diverse student body with students from a wide variety of social, ethnic, and racial backgrounds[18]. The opponents argued that this was not a compelling interest. But the Court, in an opinion by Justice O辰onnor, made the very significant decision that the University痴 desire to achieve diversity in its student body was in fact a compelling governmental interest, relying heavily on the reasoning of Justice Powell痴 lone opinion in Bakke[19]. The Court then went on to find, 5-4, that the law school痴 nuanced, holistic consideration of race was sufficiently narrowly tailored to be constitutional[20]. The Court noted that 渡arrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence and fulfilling a commitment to provide educational opportunities to members of all racial groups.納21] The Court rejected the Bush Administration痴 argument that the law school痴 desire to achieve a 田ritical mass of minority students was 殿 disguised quota.納22] Thus, the Court concluded that the law school program is constitutional[23].

But in the undergraduate case, the Court decided 6-3, in an opinion by Chief Justice Rehnquist, that the undergraduate system was not sufficiently narrowly tailored. The Court objected to the point system which had a scale of 1-150 points, gave 20 points to an applicant if he or she was a member of an underrepresented race - specifically African American, Hispanic, or Native American - and automatically admitted anyone with 100 or more points[24]. The problem with the point system, in the view of the six in the majority, was that it was too formulaic, failed to make the individualized assessments the law school made, and thus was not narrowly tailored[25]. In light of this result, the University has said that it will revise its undergraduate program to make it a more individualized assessment - not an easy task given that it receives more than 25,000 applications for 5,000 spots[26].

I was not surprised by the decision - in fact, I had predicted it. At a symposium in March 2003, I said I thought that Justice O辰onnor would want to find one of the two programs constitutional[27]. As noted, Justice O辰onnor had said earlier in Adarand that strict scrutiny, applied to affirmative action programs, need not necessarily be fatal and the Michigan cases gave her a chance to find one that could survive. Of the two programs, the law school program was the better crafted - after all, it was designed by law professors who were well aware of Supreme Court precedent. I did wonder if the Court might find that the idea of 田ritical mass was too close to a quota, but, as noted, it didn稚. And I wondered if the lack of a termination date would be a problem. But Justice O辰onnor simply introduced her own idea that she expected that these programs will no longer be necessary in 25 years. As she expressed it: 展e take the Law School at its word that it would 鼠ike nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable. ... It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.納28]

One of the striking features of these two Michigan cases is that they generated a total of thirteen opinions - six opinions in the law school case and seven in the undergraduate case. All nine justices wrote his or her own opinion in at least one of the cases; some of the Justices wrote separately in both cases. It was almost like the early days of seriatim opinions from the Court.

Chief Justice Rehnquist wrote the principal dissenting opinion in the law school case, joined by all the dissenters - Justices Kennedy, Scalia, and Thomas. He accused the majority of improperly applying the strict scrutiny test and showing too much deference to the University痴 decisions: 鄭lthough the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.納29] Justice Kennedy agreed, calling the law school痴 use of 田ritical mass a disguised quota[30].

Justice Thomas wrote an impassioned dissent in the law school case, in which Justice Scalia joined. His opinion was 31 pages long, almost as long as Justice O辰onnor痴 majority opinion. After quoting Frederick Douglass and accusing the majority of responding to 殿 faddish slogan of the cognoscenti納31] in order to achieve what he derisively called 途acial aesthetics,納32] Thomas concluded that Michigan had shown 渡o compelling interest in having a law school at all, much less an elite one.納33] Since many graduates leave the state, Thomas opined, the 鏑aw School痴 decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan,納34] obviously totally dismissing the judgment of the state痴 elected officials over all these years. He rejected racial preferences as destructive[35] and stigmatizing [36]. In his view, such preferences are unconstitutional now and will still be unconstitutional 25 years from now. In fact, he put his own 都pin on Justice O辰onnor痴 25 year statement, saying that the majority was giving universities a 25-year license to violate the Constitution納37] and that he 殿gree[d] with the Court痴 holding that racial discrimination in higher education will be illegal in 25 years,納38] not exactly what the Court said, as Justice Ginsburg pointed out in her concurrence[39].

Justice Scalia also wrote his own dissent in the law school case, in which Justice Thomas joined. He agreed with Justice Thomas that Michigan did not have a compelling interest in using racial preferences to seek diversity; in his view, if Michigan would simply stop being an elite institution that emphasized grades and high LSATs, it could have a more diverse class without preferences[40]. Scalia also predicted that these two cases would generate considerable future litigation, with the courts asked to decide whether a particular program was more like the constitutionally acceptable law school program or like the unconstitutional undergraduate program[41].

Justice Ginsburg wrote both a concurring opinion in the law school case and a dissent in the undergraduate case. In the law school case, her concurrence, joined by Justice Breyer, clarified the fact that, in her view, Justice O辰onnor痴 proposed 25 year sunset idea was based on a 塗ope, but not [a firm] forecast,納42] that such preferences will no longer be needed in 25 years. In Justice Ginsburg痴 dissent in the undergraduate case, in which she was joined by Justice Souter, she said she would have upheld the number-based program because it was open and honest, a system she preferred over one operated with 努inks, nods, and disguises.納43]

Justice Stevens, joined by Justice Souter, would have found that the named plaintiffs in the undergraduate case, Jennifer Gratz and Patrick Hamacher, had no standing to challenge the undergraduate program[44]. Obviously, the majority disagreed and reached the merits[45].

The Michigan cases are significant for several reasons. First, they will affect all public higher education in the country. Second, because of federal laws, they will also impact all private institutions that receive federal funding[46]. Third, they will affect the military academies and the Court was clearly impressed by the amicus brief of many former military leaders who argued that it was 兎ssential to have affirmative action in both the military academies and the best schools ROTC programs so as to get a sufficient number of well-educated minority officers in the military[47]. Fourth, the decision will affect private corporations who want a diverse workforce and many of the Fortune 500 filed amicus briefs on the side of the University [48]. Indeed, Justice O辰onnor痴 majority opinion in Grutter was notable in its reliance on and quotations from the many amicus briefs filed in the case, especially those from the Fortune 500 and the retired military officials [49].

Finally, in addition to influencing all the admission policies of all institutions of higher education, the decisions are likely to have a significant impact on the appointment of any new Justice to the Supreme Court. Determining a nominee痴 views on affirmative action will now be at least as important as his or her views on abortion. The appointment process will be particularly intense if the vacancy is Justice O辰onnor痴 seat, since she has been the key vote in both the affirmative action and the abortion cases.

Fifty years after Brown v. Board of Education, our country is still struggling with the aftermath of years of slavery and segregation. In a 1986 speech to the Second Circuit Judicial Conference, Justice Thurgood Marshall, the man who brought us the Brown case, urged Americans to 吐ace the simple fact that there are groups in every community which are daily paying the cost of the history of American injustice. The argument against affirmative action is ... an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the laws, requires us, Marshall said, 鍍o make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, Marshall concluded, 努e must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will [unfairly] be borne by those who are least able to pay.納50] By approving the constitutionality of some enlightened methods designed to diversify higher education and mitigate the ill effects of chronic discrimination, the United States Supreme Court has, this year, given force and volume to Justice Marshall痴 warning. How long his clarion cry will be heard will depend significantly on upcoming appointments to the Supreme Court. Stay tuned.

[1] The term 殿ffirmative action was first used by President John F. Kennedy when he created the Equal Employment Opportunity Commission in 1961 and required that projects receiving federal funds take 殿ffirmative action to ensure that employment decisions are free from racial discrimination. Exec. Order No. 10925, 26 Fed. Reg. 1977 (March 6, 1961). Slowly, the idea of affirmative action evolved to encompass programs that actively sought to increase the participation of racial minorities. For example, in 1965 pursuant to the authorization of Executive Order 11246, the Department of Labor established the Office of Federal Contract Compliance which required contractors to demonstrate proactive plans to ensure the inclusion of minorities in their workforce before the awarding of government contracts. In 1970, the Labor Department required employers with fifty or more employees and $50,000 in government business to develop 都pecific goals and timetables to correct for the under utilization of minority workers. For a history of these efforts, See Albert G. Mosley & Nicholas Capaldi, Affirmative Action: Social Justice or Unfair Preference (1996); Laurence H. Tribe, American Constitutional Law, vol. II, s. 16 (3d ed. 2000). The term 澱enign discrimination seems to have been used by the Court for the first time in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
[2] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Prior to Bakke, the Court seemed to want to let the issue percolate among the lower courts. See E.g., Johnson v. Comm. on Examinations, 407 U.S. 915 (1972) (denying certiorari in a case challenging the Arizona State Bar痴 reconsideration and admission to the bar of failing minority applicants while denying admission to white applicants with higher scores); Defunis v. Odegaard, 416 U.S. 312 (1974) (granting certiorari but then dismissing as moot a case challenging the constitutionality of the admission program of the University of Washington Law School on the ground that it favored some minority applicants; case dismissed as moot because by the date of oral argument, plaintiff was in his final quarter of law school (having been admitted pursuant to a court order) and the school conceded that he would be permitted to finish that quarter regardless of the Court痴 ruling).
[3] Justices Brennan, White, Marshall and Blackmun concluded that race may be used as a factor in admissions decisions and that overcoming substantial chronic minority under-representation in the medical profession is an acceptable justification for such preferences. 438 U.S. at 325-26.
[4] Justice Stevens, Chief Justice Burger, Justice Stewart and Justice Rehnquist believed that it was not necessary to decide, in this case, whether race could ever constitutionally be a factor in admissions decisions because the admission policy at issue here violated Title VI of the Civil Rights Act of 1964 (42 U.S.C. ァ2000a). 438 U.S. at 411-12.
[5] 438 US at 319, 320.
[6] 438 U.S. at 271 (Powell, J. , announcing opinion of the Court): "For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner's special admissions program unlawful and directs that respondent to be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, Mr. Justice STEWART, Mr. Justice REHNQUIST and Mr. Justice STEVENS concur in this judgment. I also conclude for the reasons stated in the following opinion that the portions of the court's judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers Mr. Justice BRENNAN, Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN concur in this judgment. Affirmed in part and reversed in part."
[7] Adarand v. Pena, 515 U.S. 200 (1995).
[8] Adarand overruled the 1990 case of Metro Broadcasting v. FCC, 497 U.S. 547 (1990) where the Court, also by a 5-4 vote in an opinion by Justice William Brennan, had held that affirmative action programs adopted by the federal government should be judged by the more lenient standard of intermediate scrutiny.
[9] Adarand at 227. Earlier, in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Court held that affirmative action programs adopted by state and local governments should be judged by a strict scrutiny standard. Metro Broadcasting had distinguished federal programs from stat and local programs and held that federal programs should be judged according to the more lenient standard of intermediate scrutiny. Adarand overruled that aspect of Metro Broadcasting and decided that all government programs, including those adopted by the federal government, should be judged by strict scrutiny. See Laurence H. Tribe, American Constitutional Law, vol. II, ァ 16 (3d ed. 2000); Isaac Simon, Constitutional Theory Building in the Context of the Fourteenth Amendment: The History of Affirmative Action, 23 Chicano-Latino L. Rev. 113, (2002).
[10] The Adarand case went up and down the federal judiciary several times, receiving Supreme Court scrutiny two more times, but on none of these trips did the Court reach the issue on the merits. See Adarand Constructors v. Slater, 528 U.S. 216 (2000)(reversing 10th circuit痴 decision that Adarand痴 appeal was moot); Adarand Constructors v. Mineta, 532 U.S. 941 (2001) (dismissing the writ as improvidently granted).
[11] Gerald Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
[12] Adarand, 515 U.S. at 202 (O辰onnor concurring).
[13] Id. Interestingly, Justice Kennedy did not join this part of O辰onnor痴 opinion, but did join the rest of it.
[14] Grutter v. Bollinger, No. 02-241 (S. Ct. Jun. 23, 2003). .
[15] Grutter v. Bollinger, 137 F.Supp. 2d. 821 (E.D. Mich. 2001) (The District Court ruled in favor of petitioners and held that the law school痴 consideration of race and ethnicity in its admissions decisions violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1965 because seeking to achieve student diversity was not a compelling government al interest and that, in any event, the law school痴 policy was not narrowly tailored to further such an objective), reversed by Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) ( Law school痴 admission policy was valid because it was narrowly tailored to serve a compelling interest in achieving a diverse student body).
[16] Gratz v. Bollinger, No. 02-516 (S. Ct. Jun. 23, 2003).
[17] After Gratz and Hamacher filed their suit against President Bollinger for discrimination in the undergraduate admissions program and the University sought to justify its program as an effort to get a diverse student body, a group of prospective minority applicants to the University sought to intervene to justify the program as one to remedy past discrimination. The District Court denied the motion in Gratz v. Bollinger, 183 F.R.D. 209 (E.D. Mich 1998), but the Sixth Circuit reversed. Grutter v Bollinger, 188 F.3d 394 (6th Cir. 1999), on consolidated appeal with the law school case.
      After this preliminary skirmishing, both parties moved for summary judgment. In Gratz v Bollinger, 122 F.Supp.2d 811, (E.D. Mich, 2000), the District Court held that the University could consider race as a factor in student selection in order to further the objective of obtaining diversity in the student body. However, the University痴 past (1995-1998) practice of reserving some seats for minorities and using separate scoring grids for white and minority applicants was an unconstitutional quota and violated the equal protection rights of the white applicants. Its revised program that began in 1999 was sufficiently narrowly tailored to be constitutional. Thus, the Court granted Plaintiffs motion for summary judgment with respect to the admissions programs in existence from 1995 through 1998, and granted University Defendants motion for summary judgment with respect to the admissions programs for 1999 and 2000.
      Thereafter, in Gratz v Bollinger, 135 F.Supp.2d 790 (E.D.Mich. 2001), the Court considered Defendant-Intervenors argument that the admissions programs passed constitutional muster as narrowly tailored means of remedying past and current discrimination by the University. Although the University had never claimed that the admissions programs were implemented to remedy past discrimination, the Sixth Circuit, in allowing Defendant-Intervenors to join this action, found it persuasive "that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy." 188 F.3d at 401. The District Court interpreted that statement to require that the Defendant-Intervenors be given the opportunity to prove that remedying discrimination was the 殿ctual purpose behind the admissions programs. The District Court then found that Defendant-Intervenors failed to present sufficient evidence to create a genuine issue of material fact in support of their claim and granted summary judgment to the Plaintiffs.
      In Gratz v. Bollinger, 277 F.3d 803 (6th Cir. 2001) the Court of Appeals consolidated the appeals for both the law school and the undergraduate cases involving both the original defendants and the intervening defendants and held a hearing en banc on December 6, 2001. On May 14, 2002, in Grutter v. Bollinger 288 F.3d 732, the Sixth Circuit issued an opinion in the law school case but never issued a decision on the merits in Gratz. On December 2, 2002, the Supreme Court granted certiorari in the law case as well as the undergraduate case, notwithstanding no decision by the Sixth Circuit. Gratz v. Bollinger, 123 S.Ct. 602 (Mem). The Supreme Court heard arguments in both cases on April 1, 2003 and decided both on June 23, 2003.
[18] Grutter v. Bollinger, No. 02-241 (J. O辰onnor quoting Brief for Respondents Bollinger at App. 10) (鉄eeking to 疎dmit a group of students who individually and collectively are among the most capable, the Law School looks for individuals with 壮ubstantial promise for success in law school and 疎 strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others. App. 110. More broadly, the Law School seeks 疎 mix of students with varying backgrounds and experiences who will respect and learn from each other. Ibid.
[19] Id. at 13. The Court found it unnecessary to decide whether Justice Powell痴 opinion is binding under the rationale of Marks v. United States, 430 U.S. 188 (1977) at 193, noting that the Marks inquiry had 澱affled and divided the lower courts that have considered it, id. at 13, and that the majority here was independently concluding that diversity was in fact a compelling governmental interest. Ibid.
[20] Gratz v. Bollinger, No. 02-516 (S. Ct. Jun. 23, 2003).
[21] Id. At 57. In the opinions of Justices Scalia and Thomas, writing in dissent, the University did have to choose between being committed to excellence and seeking a diverse student body. See infra at notes 31-41
[22] U.S.Amicus. Brief Jan. 17 2003, Brief for United States as Amicus Curiae Supporting Petitioner (No. 02-516) ( Not only does the Equal Protection Clause require the government to consider and employ efficacious race-neutral alternatives, but it also demands that any use of race be otherwise carefully calibrated and narrowly tailored. Efforts to use quotas to achieve predetermined levels of racial participation are the very antithesis of such narrow tailoring. However, respondents admissions policy uses disguised quotas to ensure that each entering class includes a predetermined 田ritical mass of certain racial minorities. This Court has repeatedly condemned quotas as unconstitutional, and respondents cannot escape the reach of those cases by pursuing a purportedly flexible, slightly amorphous 田ritical mass in lieu of the kind of rigid numerical quotes struck down by the Court in Bakke. In practice, respondents pursuit of a 田ritical mass operates no differently than more rigid quotas. Any variations in results from year to year owe more to respondents inability to predict acceptance rates and total admissions with unfailing accuracy than to any inherent flexibility in the quotas.)
[23] Voting with the majority were Justices Ruth Ginsburg, David Souter, Stephen Breyer, and John Paul Stevens. Dissenting were Chief Justice William Rehnquist, Justices Clarence Thomas, Anthony Kennedy, and Antonin Scalia.
[24] An applicant can score a maximum of 150 points. Each application receives points based on high school grade point average, standardized test scores, academic quality of an applicant痴 high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. Up to 110 points can be assigned for academic performance, and up to 40 points can be assigned for the other, nonacademic factors. Michigan residents, for example, receive 10 points, and children of alumni receive 4. Admissions counselors can assign an outstanding essay up to 3 points and can award up to 5 points for an applicant痴 personal achievement, leadership or public service. An applicant automatically receives a 20 point bonus if he or she possesses any one of the following 杜iscellaneous factors: membership in an underrepresented minority group; attendance at a predominantly minority or disadvantaged high school; or recruitment for athletics. Only one such 20 point bonus can be given per applicant. The resulting number is treated according to the following admissions dispositions: 100-150 (admit); 95-99 (admit or postpone); 90-94 (postpone or admit); 75-89 (delay or postpone); 74 and below (delay or reject).
[25] Gratz v. Bollinger, No. 02-516 (S. Ct. Jun. 23, 2003) at 14. (展e find that the University痴 policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 砥nderrepresented minority applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program.) The six in the majority were Chief Justice Rehnquist, Justices Kennedy, Scalia, Thomas, O辰onnor, and Breyer. Dissenting were Justices Ginsburg, Souter, and Stevens. As noted infra at , Justice Breyer only concurred in the judgment. He did not join the majority opinion. See Gratz, No. 02-516 (J. Breyer concurring in judgment) (的 concur in the judgment of the Court though I do not join its opinion.)
[26] In an interview on June 23rd, 2003 with University of Michigan President, Mary Sue Coleman, CNN Anchor Judy Woodroof asked Coleman what effect she thought the Supreme Court's ruling would have on Michigan's undergraduate admissions policy. Coleman responded with " Well, what we may do is to fashion our undergraduate policy along the lines of the law school policy, which the Court said is fine and said that the law school policy is constitutional. And what that means is, it's a more individualized attention to every single applicantsヲ we believe that we can do this in a way that the Court has found constitutional. And our other policy, the earlier one that the Court struck down, was a screening device, because we get so many applications. So what we may have to do is to have more admissions counselors, hire more people for the undergraduate admissions, do more intensive work. ヲAnd I want to let students know that now we'll be looking, using a slightly different policy but we're going to giver every application a fair look."
[27] See transcript of American University Symposium of March 2003- Celebrating the 50th Anniversary of Brown v. Board of Education (on file with author).
[28] Grutter v. Bollinger, No. 02-241 (S.Ct. June 23, 2003) at 64.
[29] Id. at 72 ( Rehnquist, dissenting)
[30] Id. at 87 (典he dissenting opinion by THE CHIEF JUSTICE, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.).
[31] Id. at 104, 105. (Thomas, J. Dissenting)
[32] Id. at 113.
[33] Id. at 118. (emphasis in original).
[34] Id. at 121.
[35] ld. At 110. (citing Adarand Construction v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., Concurring in part and concurring in judgment). (撤urchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation痴 understanding that such classifications ultimately have a destructive impact on the individual and our society.).
[36] Id. at 144, 145. (展hen blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma - because either racial discrimination did play a role, in which case the person may be deemed 登therwise unqualified, or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination.)
[37] Id. at 140.
[38] Id.
[39] See infra.
[40] Id. at 99 (Scalia, J. concurring in part and dissenting in part.) (的 also join Parts I through VII of JUSTICE THOMAS痴 opinion. I find particularly unanswerable his central point: that the allegedly 田ompelling state interest at issue here is not the incremental 兎ducational benefit that emanates from the fabled 田ritical mass of minority students, but rather Michigan痴 interest in maintaining a 菟restige law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest everything is.).
[41] Id. at 100, 101.
[42] Id. at 69. (Ginsburg, J., concurring)
[43] Gratz v. Bollinger, No. 02-516 (S. Ct. June 23, 2003) at 32. (Ginsburg, J. Dissenting)
[44] Id. (Stevens, J. dissenting). Justice Stevens argued that neither of the two named petitioners had standing in this suit. After being denied admission to the University of Michigan, both Gratz and Hamacher enrolled in, and have since graduated from, other universities. In his complaint, Hamacher alleged that he intended to apply to transfer to the University of Michigan if the discriminatory admissions program was eliminated. Justice Stevens contended that the use of race in the undergraduate transfer admissions differs from its use of race in the undergraduate freshman admissions, so Hamacher lacks standing to represent absent class members challenging the latter. Although Hamacher痴 graduation from another university does not destroy any standing he may have had at the filing of this action, Hamacher did not actually apply for admission as a transfer student, which Stevens argued makes his claim of future injury at best 祖onjectural or hypothetical rather than 喪eal and immediate.
[45] Gratz v. Bollinger, No. 02-516 (Rehnquist, J., writing for the majority). The majority rejected Justice Stevens' contention that, because Hamacher did not actually apply for admission as a transfer student, his future injury claim was conjectural or hypothetical rather than real and immediate. The majority said that the "injury in fact" necessary to establish standing in this type of case is the denial of equal treatment resulting from the obstacle, not the ultimate inability to obtain the benefit. In such a case, the majority indicated that to establish standing, a party need only demonstrate that he is able and ready to perform and that a discriminatory policy prevents him from doing so on an equal basis. Because Hamacher demonstrated that he was "able and ready" to apply as a transfer student should the University cease to use race in undergraduate admissions, he therefore had standing to seek prospective relief with respect to the University's continued use of race in undergraduate admissions. The majority also rejected Justice Stevens' contention that the use of race in the undergraduate transfer admissions differed from the University's use of race in its freshmen admissions and that Hamacher lacked standing to represent absent class members challenging the latter. It noted that the criteria used to determine whether a transfer applicant will contribute to diversity are identical to those used to evaluate freshmen applicants. Because of this, Hamacher's personal stake, in view of both his past injury and the potential injury he faced at the time of certification, demonstrated that he could maintain the action.
[46] As Justice O辰onnor specifically noted in her majority opinion in Grutter, not only did the law school program satisfy the Equal Protection Clause challenge, it also survived the challenges under Title VI of the Civil Rights Act of 1965 and 42 USC 1981, since the prohibitions in both of these statutes are co-extensive with the Equal Protection Clause. Grutter v. Bollinger, 02-241 (S.Ct. June 23, 2003) at 65. Conversely, in the undergraduate case, the Court held that because the program violated the Equal Protection Clause, it also violated Title VI and 42 U.S.C. 1981.
[47] Amicus.Brief Feb 21, 2003, Consolidated Brief of Lt. Gen. Julius W. Becton, Jr., Adm. Dennis Blair, Maj. Gen. Charles Bolden, H (NO. 02-241, 02-516)
[48] Amicus.Brief Feb 24, 2003, Motion for leave to file Amicus Curiae Brief and Brief of Exxon Mobil Corporation; Brief of Amici Curiae 65 Leading American Businesses in Support of Respondents; Amicus Brief of General Motors Corporation as Amicus Curiae in Support of Respondents; Brief of Amici Curiae Media Companies in Support of Respondents, (No. 02-241).
[49] See Grutter v. Bollinger, No. 02-241 (S. Ct. June 23, 2003) at 18-20.
[50] Annual Judicial Conference Second Judicial Circuit of the United States, 115 F.R.D. 349 (1986).

Susan Low Bloch is a professor at Georgetown University Law Center, where she teaches Constitutional Law.

September 5, 2003

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JURIST Contributor Susan Low Bloch is a professor at the Georgetown University Law Center, where she teaches Constitutional Law and a seminar on the Supreme Court. Professor Bloch is the author of numerous articles in the areas of constitutional and administrative law and is the co-author of the book Supreme Court Politics: The Institution and Its Procedures, published by West Publishing Company in 1994. She has given lectures and interviews on a variety of topics, including impeachment, presidential immunity, historical overviews of the Supreme Court, the role of the Constitution in this country and its relevance for emerging democracies. In November 1998, she testified before the House Judiciary Committee as one of 19 constitutional law experts on what is an impeachable offense. She also testified before the Senate on whether the President can be indicted and tried while in office.

Widely quoted in the media, Professor Bloch has appeared on numerous television and radio programs on CNN, ABC, CBS, NBC, MSNBC, Fox News Channel, NPR, CBC, and USAID to discuss various topics including the Clinton-Lewinsky scandal, impeachment, and the independent counsel statute as well as pertinent constitutional issues of the moment.

In addition to teaching, Professor Bloch is a member of the American Law Institute, participant on the Twentieth Century Fund Project on the Judiciary, and a Fellow of the American Bar Foundation. Locally, she is a commissioner on the Judicial Nominating Committee for the District of Columbia Courts and has worked with the United States Court of Appeals for the District of Columbia Circuit, serving on the Committee to Write the Oral History of the Circuit and on numerous arrangement and program committees for the D.C. Circuit Judicial Conference.

Before joining the Law Center, Professor Bloch served as a law clerk for Justice Thurgood Marshall and for Judge Spottswood Robinson. She also practiced law at Wilmer, Cutler, and Pickering for about four years. Susan Bloch did her legal training at the University of Michigan, where she graduated summa cum laude. Before that, she received graduate degrees in mathematics and computer science from the University of Michigan and a B.A. with distinction from Smith College.