1.  Explain the process and politics involved in the selection of federal judges.  Provide specifics on the steps and “political” concerns

     during this process.


2.  The Supreme Court has played a major role in the interpretation of due process rights guaranteed to any person accused of a crime

     in our criminal justice system.  Using your text and Woll readings, class presentations and the video presentation Gideon’s

     Trumpet, explain the following:

     (a)  the steps involved in accepting cases to the Supreme Court docket.

     (b)  the steps involved in deciding cases on the Supreme Court docket.

     (c)  the specific due process rights involved in the Gideon case.  (4th, 5th, 6th, 8th or 14th Amendment rights)

     (d)  the impact of the Court’s decision in Gideon’s case when comparing the 1st trial with the 2nd trial.


3.  Using your text readings, class presentations and the video presentation Simple Justice, explain the impact and importance of the

     Brown v. Board of Education decision with reference to the following:

(a)     Plessy v. Ferguson and the “separate but equal” doctrine

(b)     The role of the 14th Amendment

(c)     the "strategy" and cases leading to the Brown decision


4.  Explain the effect of the following on the application of the federal Bill of Rights to the States:

    1. Barron v. Baltimore
    2. 14th Amendment
    3. Incorporation doctrine

Provide two examples of incorporated rights along with the case that established them.

Provide two examples of rights not incorporated.


5.  Explain the following concerning the two elements regarding religion and government contained in the 1st Amendment:

A.      the “establishment clause” and the “Lemon Test” from Lemon v. Kurtzman (1971) along with two Supreme Court cases that illustrate how the Court deals with this clause

B.       the “free exercise clause” and the distinction between “belief” and “practice” and “compelling interest” along with two Supreme Court cases that illustrate how the Court deals with this clause.


6.  Many scholars and observers have argued that the ratification of the Fourteenth Amendment to the Constitution has become the

     single most important act in all of United States politics.

(a)     Identify which provision of the Fourteenth Amendment was applied in each of the following Supreme Court cases.  For each case, explain the significance of the decision in United States politics.

-          Brown v. Board of Education of Topeka, Kansas (1954)

-          Baker v. Carr  (1962)

-          Regents of the University of California v. Bakke  (1978)

(b)     Identify which provision of the Fourteenth Amendment was applied in each of the following Supreme Court cases.  For each case, explain the significance of the decision in United States politics.

-          Mapp v. Ohio  (1961)

-          Gideon v. Wainwright  (1963)

-          Miranda v. Arizona  (1966)


7.  Using your text and Woll readings, class presentations and web page articles, explain the impact of the following on the status of

     affirmative action:

                (a)   “equal opportunity”  verses  “equal results”

                (b)  Regents of the University of California v. Bakke (1978)

                (c)   “reverse discrimination”

                (d)  Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)

                (e)  “alternative” actions and plans









Bill of Rights: the first ten amendments to the Constitution.

Civil Liberties: legal and constitutional protections against government

infringement of political liberties and criminal rights.

Commercial Speech: communication in the form of advertising.

Cruel and unusual punishment: Eighth Amendment prohibits such punishment.

Eighth Amendment: forbids cruel and unusual punishment, although it does not

define this phrase.

Establishment clause: First Amendment prohibits government from establishing a

religion; is the basis for separation of church and state.

Exclusionary rule: prohibits government from including illegally obtained evidence

in a trial.

Fifth Amendment: prohibits government from forcing individuals to testify against


First Amendment: establishes freedom of religion, press, speech, and assembly.

Fourteenth Amendment: prohibits states from denying equal protection of the


Free exercise clause: government is prohibited in the First Amendment from

interfering in the practice of religion.

Incorporation Doctrine: legal concept under which the Supreme Court has

nationalized the Bill of Rights by making most of its provisions applicable to the

states through the Fourteenth Amendment.

Libel: publication of false or malicious statements that damage someone’s


Plea Bargaining: an actual bargain struck between the defendant’s lawyer and the

prosecutor to the effect that the defendant will plead guilty to a lesser crime (or

fewer crimes) in exchange for the state’s promise not to prosecute the defendant for

a more serious (or additional) crime.

Prior restraint: government instrument to prevent material from being published.

Probable cause: police must have a good reason to arrest someone.

Right to privacy: a contrived right from unstated liberties in the Bill of Rights.

Search warrant: written authorization from a court specifying the area to be

searched and what the police are searching for.

Self-incrimination: testifying against oneself.

Sixth Amendment: designed to protect individuals accused of crimes; includes the

right to counsel, the right to confront witnesses, and the right to a speedy and public


Symbolic Speech: political actions instead of words.

Unreasonable searches and seizures: obtaining evidence without a good reason.

Affirmative action: a policy designed to give special consideration to those

previously discriminated against.

Americans with Disabilities Act of 1990: strengthened protections of individuals

with disabilities by requiring employers and public facilities to make "reasonable

accommodations" and prohibiting employment discrimination against people with


Civil rights: extending citizenship rights to participate to those previously denied


Civil Rights Act of 1964: forbids discrimination in public accommodations and


Comparable worth: equal pay for equal worth.

Equal Protection of the Laws: provided by the Fourteenth Amendment mandating

that all people be protected by the law.

Equal Rights Amendment: proposal that equality of rights under the law not be

denied on the account of sex.

Fifteenth Amendment: provides the right to vote for blacks.

Fourteenth Amendment: prohibits states from denying equal protection of the laws.

Nineteenth Amendment: provides women with the right to vote.

Poll Taxes: taxes levied on the right to vote designed to hurt poor blacks.

Suffrage: the legal right to vote.

Thirteenth Amendment: abolished slavery and involuntary servitude.

Twenty-fourth Amendment: prohibited poll taxes in federal elections.

Voting Rights Act of 1965: a policy designed to reduce the barriers to voting for

those suffering discrimination.

White Primary: practice where only whites could vote in primaries.

Amicus Curiae briefs: friend of the court briefs by nonlitigants who wish to

influence the Court's decision by raising additional points of view and information

not contained by briefs prepared by litigants' attorneys.

Appellate jurisdiction: given to a court where cases are heard on appeal from a

lower court.

Class action suits: cases which permit a small number of people to sue on behalf

of all other people similarly affected.

Courts of appeal: courts which have the power to review all final decisions of

district courts, except in instances requiring direct review by the Supreme Court.

District courts: the entry point for most federal litigation.

Judicial activism: theory that judges should make bolder policy decisions to

alleviate pressing needs, especially for those who are weak politically.

Judicial implementation: how and whether court decisions are translated into

actual policy.

Judicial restraint: theory that judges should play minimal role in policymaking

and leave policy decisions to the legislature.

Judicial review: the power of the courts to hold acts of Congress, and by

implication the executive, in violation of the Constitution.

Justiciable disputes: cases that can be settled by legal methods.

Marbury v. Madison: the 1803 Supreme Court case that originated the notion of

judicial review.

Opinion: a statement of the legal reasoning behind the decision.

Original intent: the theory that judges should determine the intent of the framers

and decide in line with their intent.

Original jurisdiction: given to a court where a case is first heard.

Political questions: conflicts between the president and Congress.

Precedent: the way similar cases have been handled in the past is used as a guide to

current decisions.

Senatorial courtesy: a tradition in which nominations for federal judicial positions

are not confirmed when opposed by a senator of the president's party from the state

in which the nominee is to serve or from the state of the nominee's residence.

Solicitor general: a presidential appointee who is in charge of the appellate court

litigation of the federal government.

Standing to sue: litigants must have serious interest (sustained direct and

substantial injury) from a party in a case.

Stare decisis: an earlier decision should hold for the case being considered.

Statutory construction: a procedure in which the legislature passes legislation that

clarifies existing laws so that the clarification has the effect of overturning the court's


Supreme Court: resolves disputes between and among states, maintains the

national supremacy of law, ensures uniformity in the interpretation of national laws.

United States v. Nixon: 1974 Supreme Court decision that required President Nixon

to turn White House tapes over to the Courts.




The Campus Perspective on Affirmative Action

By Michelle Meyer, Medill News Service

March 2003

[to the lead story in Gratz v. Bollinger and Grutter v. Bollinger]

When the Bruin Republicans at the University of California decided to voice their opinion on affirmative action in higher education, they held a bake sale.

The student group charged black, Latina and Native American female students 25 cents for a cookie. They charged Latino, Native American and African American males 50 cents and white females $1. They asked white males and Asian Americans of both sexes to pay $2 per cookie.

The group used the discriminatory prices to show the absurdity of using race in college admissions, said Andy Jones, a senior at UCLA and the Bruin Republicans chair, as reported in his school newspaper, The Daily Bruin.

"We wanted to show how affirmative action is racial division, not racial reconciliation," Jones said.

Students held similar bake sales on college campuses across the country, including the University of Richmond, the University of New Mexico, Stanford University and the University of Michigan —the center of the latest debate concerning affirmative action.

In December 2002, the U.S. Supreme Court decided to hear cases concerning the use of racial preferences in admissions at both the undergraduate and the law school at Michigan. Jennifer Gratz and Barbara Grutter, both white, sued the university after they were denied admission, claiming their equal rights were violated when less qualified minority applicants were accepted.

Understandably, affirmative action is a contentious issue among college students across the country. The Court has not revisited affirmative action in higher education since 1978 when it struck down the use of quotas but left open the door to racial preferences in Regents of the University of California v. Bakke.

Dozens of universities, both public and private, have filed friend of the court briefs in support of Michigan’s admissions policies. But while many student organizations have encouraged their administrations’ support of racial preferences, a look at student opinion reported in college newspapers across the country proves the issue is just as controversial inside schools as it is among the general public.

After the Stanford University student senate passed a resolution in support of the school president’s statement reaffirming the use of race as a factor in admissions, student journalist Shirin Sharif reported in the Stanford Daily that student opinion is not as uniform as the nearly unanimous senate vote.

Many students agreed with sophomore Ryan Wisnesky, who said, "Any judgment of a person based on the color of their skin is shallow and even racist," reported Sharif.

Piotr Kosicki said labeling students according to demographic classifications bolsters stereotypical assumptions. "Admissions officers are encouraged to indulge racist stereotypes rather than combat them; this is why affirmative action as a comprehensive policy is doomed to failure," he said.

Some students responded with apathy towards a system that is exclusive by nature. "The admissions process is completely subjective to begin with," a junior argued. "They have been given the authority to choose the best applicants. Universities have always been in the business of social engineering and they should be allowed to pursue this."

Stanford, like other universities located in states that have banned racial preferences in higher education such as California, Texas and Florida, has turned to alternative methods to create a racially diverse campus. Results — and student support for these measures -- have been mixed.

In an attempt to gauge campus opinion, the staff at UCLA’s Daily Bruin, asked students about their feelings toward affirmative action in an informal online poll.

More than half of the 720 students who responded said they feel affirmative action is racist. Less than 12 percent found affirmative action "necessary and very valuable." More than 27 percent felt that "affirmative action had its time, but now the government should find new solutions."

The Daily Texan at the University of Texas at Austin reported on support from faculty and students following the university’s friend of court brief in favor of affirmative action. Senior Onaje Barnes said affirmative access, Texas’s policy that automatically admits the top ten percent from each high school in the state, has not worked well enough to increase diversity. "Immediate action is required to help the minority enrollment numbers," Barnes said.

Staff writer Yvonne Lim reported that black enrollment at the school’s law school has fallen to four percent in 2002 without affirmative action, compared to 7.4 percent in 1995 with affirmative action. The number of Hispanics has dropped from 12.5 percent to 8 percent.

Meanwhile, students at schools that openly use racial preferences wrote editorials and letters to editors of school newspapers to debate an issue that seemed to bring out both sides in equal numbers. Opinion appeared to vary regardless of a school’s exclusivity or geographic location.

Students at southern schools, such as the University of South Carolina, the University of Alabama and Louisiana State University, used student publications to denounce affirmative action almost as frequently as they defended the practice.

The Daily Pennsylvanian at the University of Pennsylvania featured a lively online discussion regarding the use of race in admissions in which students responded to articles and editorials that appeared in the school paper.

Several students posted dissenting arguments after an article about the school’s participation in a pro-affirmative action brief seemed to infer the majority of students supported race-based policies.

"At the University of Michigan, coming from a preferred race is more important than SAT score, personal achievement, and essay combined!" wrote Pennsylvania alum Michael Stamp. "This is so blatantly racist it’s hard to believe that anybody would defend it -- yet still some people do!"

Another Pennsylvania alum named Virginia wrote sarcastically of the school’s efforts to diversify the student body. "Why consider test scores, academic performance, or any other measure of one's intelligence? Why not randomly select the student body?" she wrote. "I can think of no better way…of preparing students for a diverse world by ensuring a diverse student body. Through random selection, the student body would most certainly represent a cross-section of the college age population."

"I'm willing to wager that not one of the 259 Penn law students would withdraw from school giving his place to a minority student to expand diversity," wrote an anonymous alum. "Another example of liberal hypocrisy."

While Penn considers race in admissions, it does not use a point system akin to the University of Michigan. Sophomore Yewande Fapohunda criticized Penn’s system and pointed to statistics for the school’s class of 2006, which cites 13.7 of students have legacy status, (they are children or grandchildren of alumni), while only 5.9 percent is black and 6.8 is Latino, she said.

"How much less is okay?" she asked.

The University of Michigan’s definition of underrepresented minorities, which applies only to African-Americans, Native Americans and Latina/Latino students, is an issue that appeared repeatedly in student publications.

Yale sophomore Theresa Nguyen wrote in the Yale Herald that the role of Asian Americans reveals one of the major defects in race-based admission policies. "In deciding what ethnicities have been historically discriminated against or socio-economically disadvantaged, universities will generally choose African Americans and Hispanics with little consideration for Asian Americans," she wrote. "Nor are other disadvantaged groups such as Arab Americans or Eastern European Americans factored into the equation."

A Pennsylvania alum agreed: "The hypocrisy is that Asians are considered to be a minority to colleges when it comes time to display their minority figures and boast about diversity. However, Asians are considered an over-represented minority and do not enjoy [affirmative action] admission benefits as opposed to under-represented minorities."

Some students expressed a general approval for the consideration of race in admissions, but a desire for a more subtle use of racial preference than is evident in the point system employed by the University of Michigan.

An editorial that appeared in The Oregon Daily Emerald, the student newspaper of the University of Oregon, affirmed that race is a compelling state interest, but criticized Michigan’s system for its apparent arbitrariness.

"The point bonuses at Michigan are given for all sorts of subjective measurements that have nothing to do with academics, and this strikes us as wrong," reads the student editorial.

Jon Patterson, a student at the University of Missouri, expressed a similar dislike for Michigan’s policies in an opinion piece for the school’s Maneater.

"Spotting certain minority students 20 points is really a very nice way of lowering the bar for them by 20 points," Patterson wrote. "Should (affirmative action) become an end in itself, regardless of the potential dangers of telling 18-year-old kids that 1/7 of their chances (for admittance) is determined by a thin layer of melanocytes in the epidermis?"

But at the University of Missouri, like most schools across the country, student groups and newspaper editorials embraced affirmative action as a majority. However, the rampant student letters and postings denouncing race-based admissions prove that the Court is taking on an issue that has continued to boil in the more than 20 years since its last ruling on affirmative action in higher education.

[to the lead story in Gratz v. Bollinger and Grutter v. Bollinger]







A Dream Denied Leads Woman to Center of Suit
Gratz's Rejection by U-Mich. Led Her to Fight Against Race-Conscious Admissions

By Anne Hull
Post Staff Writer
Sunday, February 23, 2003; Page A01

OCEANSIDE, Calif. -- Jennifer Gratz has heard it all. That she's a pawn of the right. That she's hijacked the language of the civil rights era. That her lawsuit against the University of Michigan's affirmative action policy cloaks a deeper agenda about race.

"Totally crazy," says the 25-year-old, shaking her head.

The facts. In 1995, Gratz was a high school student with a 3.8 GPA, the golden face of her yearbook when she applied to the University of Michigan and was rejected. Two years later, she helped lead a class action lawsuit against the university, alleging that the school's admissions policies gave an unfair edge to minority applicants.

With her case now at the Supreme Court, Gratz has become the central figure in a sprawling ideological debate over affirmative action. It is her story that will challenge the fairness of race-conscious admissions programs: Gratz represents the white working-class striver passed over in the name of diversity.

"I can't tell you exactly how my life would be different, because I wasn't given the opportunity," says Gratz, who left Michigan two years ago and now lives in the rugged hills north of San Diego. She is not the forensic scientist she thought she'd become; she is a software trainer for a vending machine company called SupplyPro.

Newly married, Gratz is sitting in the kitchen of her light-filled stucco house in a planned community. It's the morning after Valentine's Day, when her husband surprised her with homemade ravioli and a chocolate soufflé. A pair of Betty Crocker cookbooks rest on the kitchen counter. Relaxed and polished, Gratz is a benefactor of innate intelligence and careful coaching by those whose cause she is championing. After six years as a plaintiff, she is still handled with care: Her lawyers in Washington allow a sit-down interview with a reporter, but the conversation is monitored via speaker phone, with occasional interjections.

To some degree, Gratz was snapped into machinery that was churning before she received her rejection letter. The battle began in 1978 when the Supreme Court ruled in Regents of the University of California v. Bakke that race could be used as a factor in admitting students but that quotas were forbidden. In 1996, a federal appeals court in Texas barred the consideration of race in admissions and financial aid.

In 1995, events were taking hold in Michigan. A cache of documents forced into public view revealed Michigan's admissions process. The group of lawyers who won the Texas case was looking for another. From this confluence emerged Gratz.

Gratz wasn't an activist or grass-roots warrior. She was a teenager whose rejection by her dream school shook her confidence and sense of fairness. She had spent years polishing her credentials for the University of Michigan, working hard, volunteering, studying, even chairing blood drives. Then the dream was snatched away. A minority student with the same GPA and test scores as Gratz would have likely been accepted under Michigan's policy.

Michigan acknowledges that it weighs race when considering applicants. To process the more than 25,000 undergraduate applications that flood in each year for the 5,000 coveted spots, the school uses a point system to score each prospective student. Black, Latino and Native American applicants are awarded extra points because they belong to groups the university says are underrepresented on campus. In the 2002 class, blacks made up almost 9 percent of Michigan's freshman class, Latinos 6 percent and Native Americans almost 2 percent.

"We want to have a class that thinks about issues from different backgrounds," says Mary Sue Coleman, the university's president.

The notion galls Gratz. Atmospheres can't be "engineered," she says. Points for being a minority?

"That would be like me deciding, 'Hey, I want to feed the hungry but I don't have any means to do that, so I'm going to go rob a grocery store,' " she says. "It's still illegal, even though my intentions are good."

The University of Michigan is one of the most idyllic campuses in America. On fall Saturdays, when 107,000 fans jam into Michigan Stadium and shatter NCAA attendance records, a sonic halo lifts over Ann Arbor. The splendor is secondary to academics: Michigan is one of two public institutions consistently ranked among the nation's top 10 universities.

Gratz grew up 45 minutes away in Southgate, a working-class suburb of Detroit where many in her neighborhood pulled shift work at the auto assembly plants. Her dad was a police sergeant who worked $10-an-hour moonlighting jobs as a security guard; her mom was a secretary. Neither parent finished college. On Saturday afternoons in the Gratz house, Michigan football ruled the TV. Gratz attended St. Pius Catholic School through the eighth grade and then set her sights on studying forensic medicine at Michigan.

At Southgate Anderson High, she did it all: student government, National Honor Society, science club, spirit club, cheerleader. In Michigan, cheerleading is a sanctioned sport involving stunts and occasional calls for an ambulance. Gratz was so competitive that she used visualization techniques to enhance her performance. "I definitely loved the physical aspects of cheering, of knowing that I could hold a girl above my head," she says.

Race was almost a nonissue at Southgate, because 94 percent of its students were white. The prom was held at the Grecian Center next to the Greek Orthodox church. Gratz would arrive home after a 12-hour day packed with school and extracurricular activities, her dinner waiting on a plate in the kitchen.

Southgate didn't offer Advanced Placement courses, but as a senior Gratz took precalculus and three honors courses. Her GPA was 3.8, and she scored a 25 out of 36 on her ACT college entrance exam.

"Jennifer did everything we asked her to do, and more," says a former assistant principal, Ron Dittmer. "I wouldn't ask any more of my own daughter."

Gratz was so confident that she'd make the cut at Michigan that she applied to no other colleges. The wait-list letter was the first bad sign. Then in April of her senior year, after weeks of running home from school to check the mail, came the thin letter of rejection. Through her tears, Gratz uttered her now-famous rejoinder: "Dad, can we sue?"

It was an odd reaction for a 17-year-old. But Gratz said she suspected something amiss, if not precisely that she'd been passed over because she was white. "Everyone knew bits and pieces," she says, about the premium Michigan placed on diversity. Gratz was in a state of shock. She was so embarrassed by the rejection that she told no one, not even her boyfriend of three years. She hurriedly applied to the University of Notre Dame but didn't get in. She was accepted into the honors program at the University of Michigan's campus in Dearborn.

Dearborn: "You've got four or five buildings where you take your classes," Gratz says, with none of the luminosity she reserves to describe Ann Arbor. "No dorms, the U-Mall with 40 or 50 tables where you could sit around waiting for your next class to start. It wasn't college."

Ann Arbor: "They bring in recruiters from across the country and from around the world."

Dearborn: "They bring in recruiters from metro Detroit."

She began her freshman year, commuting the 15-minute drive from her parents' home.

Around the same time, a University of Michigan philosophy professor named Carl Cohen read in the Journal of Blacks in Higher Education that acceptance rates for blacks at top-tier universities were higher than for whites. Suspicious of his own university's admissions system, Cohen filed a Freedom of Information Act request.

The documents showed that Michigan used a grid to evaluate applicants, in part based on race. The grid launched everything: Cohen's testimony before the Michigan legislature sparked four Republican lawmakers to take up the cause.

One of the politicians was then-state Rep. Deborah Whyman, who called the Center for Individual Rights, a conservative Washington law firm that was hot off its 1996 victory in the Texas affirmative action case.

"We laid out a game plan," says Whyman. "When it came down to finding plaintiffs, I did it." She did talk radio shows and gave news interviews about a possible lawsuit against Michigan.

Gratz's parents saw a newspaper article and clipped it for their daughter, who was working at a summer cheerleading camp but still living at home. Immediately, Gratz knew she wanted to be part of some effort against Michigan. She pictured herself stuffing envelopes. She called Whyman's office and gave her vital statistics: her high school GPA, test scores and extracurricular activities.

Whyman says she forwarded 200 names to CIR; the law firm's Curt Levey says that only "six or seven" were ever seriously considered. One was Gratz, who met with CIR attorneys at a Courtyard Marriott near the Detroit airport. A plaintiff was born.

The lawsuit was filed in October 1997 on behalf of Gratz and Patrick Hamacher, another student wait-listed from Michigan's undergraduate program. A separate lawsuit was filed against the University of Michigan Law School. Oral arguments in both cases are scheduled for April 1 before the Supreme Court.

Gratz absorbed most of the heat. Walking out of the courthouse after her case had been sent to the U.S. Court of Appeals for the 6th Circuit, a protester screamed at Gratz, "racist bitch!"

"I'm exactly the opposite," she would later say. "I'm standing up and saying people should not be treated differently because of their skin color."

After Cohen's documents were made public, Michigan changed its admissions process, replacing the grid with the point system that is being challenged. On this "Selection Index Worksheet," a perfect GPA is worth 80 points. Having a parent who attended Michigan is worth up to four points. Scholarship athletes are awarded 20 points. A perfect SAT score brings 12 points and an excellent essay gets one point. Being an underrepresented minority brings 20 points.

"To assume a minority can't go to the University of Michigan without that 20 points is crazy," says Gratz. "There are plenty of kids who could stand on their own."

Gratz has been confronted with every angle of the argument. Aren't legacy points also a form of preference? "Four points," she says, not 20. Besides, minorities can also be legacies.

In a classroom setting, could a black student's viewpoints enrich a discussion about racial profiling? "Everyone in the country views racial profiling as wrong," Gratz says. "That's exactly what the University of Michigan is doing: racial profiling. There are race-neutral ways to run an admissions process."

What about affirmative action acting as a remedy for society's past discriminatory practices? Her lawyer won't allow her to answer. "That's a policy question," says Levey.

As for her own life, Gratz says she decided not to transfer to Ann Arbor after her sophomore year at Dearborn; too many of her core courses wouldn't have carried over. She received her math degree in 1999. She took a job with a credit union in Michigan, continuing to live at home. She then switched to a Los Angeles-based company, which brought her to California.

When Gratz first contemplated joining the lawsuit, friends cautioned her that prospective employers might not look favorably on her stance against affirmative action. But as time passed, she says, "I found just the opposite."

Gratz says she was sidetracked by a system that works against whites, but she has made the best of her life. "I'm not an angry or bitter person," she says, gently picking up one of her cats, Bandit. Gratz and her husband, Rob Whyte, a 31-year-old software developer, recently honeymooned in Jamaica and are decorating their new house.

"I'm proud of her," Whyte says, taking a break from installing a satellite dish on their roof on a Saturday morning. "She's standing up for something that a lot of us believe is the right thing."

Far from living in racial exile, Gratz says she is surrounded by diversity. "I have co-workers from all over the place, from England, from Japan," she says of her job at her San Diego company. "We have a friend from South Africa. The head coach at Wayne State University where my dad coaches baseball is African American."

Hanging in Gratz's closet is a University of Michigan sweat shirt. It is a rich and painful irony, this love for the school that spurned her. Gratz was in an airport recently when she noticed that standing nearby was University of Michigan football coach Lloyd Carr. A major celebrity sighting.

"I want you to know my wife is very excited to be standing next to the Michigan football coach," Gratz's husband told Carr. Introductions were made, and Gratz explained how she was such a die-hard fan that she watched last season's games on her computer.

Asked if it's hard to think about minority students who walk the grounds of the Ann Arbor campus, Gratz says with the slightest bit of edge, "They've been given an opportunity to go to an excellent school. Good for them."

© 2003 The Washington Post Company

Gratz, Jennifer & Hamacher, Patrick v. Bollinger, Lee, et al.


Appealed From: 6th Circuit Court of Appeals (May 14, 2002)

Oral Argument: April 1, 2003 (audio available)

Opinion Issued: 6-3 for Gratz (Rehnquist-June 23, 2003)

Subject: Affirmative action, racial preferences, equal protection

Question(s) presented: (1) Does the University of Michigan's use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C.2000d), or 42 U.S.C. 1981?

Early in her school years, Jennifer Gratz knew she wanted to attend the University of Michigan.

Already a Michigan Wolverine football fan, Gratz felt confident of her chances for admittance at the competitive university, where 5,000 students are selected from approximately 25,000 who apply annually.

The Michigan resident applied with a 3.8 GPA and a score of 25 on her ACT, which placed her in the 82nd percentile of average national scores. Gratz applied to the school’s College of Literature, Science and Arts in 1995.

Her application boasted other accomplishments. She was vice president of student council, a member of the national honor society, a class congress officer, member of the science club, cheerleader and a volunteer at a local senior center.

She was also the first person in her family to apply to college, a fact she was proud of.

Initially, Gratz applied only to the University of Michigan, "Because I loved the University of Michigan," she said. "Growing up in Michigan there are two big schools, the University of Michigan and Michigan State. My family has always been a big fan of the University of Michigan. I always wanted to go there."

But Gratz was denied admission. The rejection letter came in a thin envelope one day after school – after many weeks of anxiously checking the mailbox, Gratz said.

"I was devastated and embarrassed," Gratz said. "I knew right away that something was wrong."

In her opinion, Gratz had done everything she could to make myself herself an ideal candidate. But one thing stood in her way, she said: Gratz is white. "If I was a minority, I probably would have gotten in," she said.

Gratz said friends who are minorities were accepted to the university – individuals who, she claimed, had lower grades and test scores than she did.

Gratz knew the school practiced affirmative action in its admission procedures. When she received the rejection letter, she turned to her father, a retired policeman and asked, "Can we sue?"

With the Center for Individual Rights, Gratz brought suit in October 1997, claiming she was rejected from the university while less qualified minority applicants were admitted.

Michigan uses an elaborate points system to determine admission in which applicants are rated and assigned points on a variety of factors. The higher an applicant’s total points, the better her chances.

For example, members of "underrepresented" racial and ethnic minority groups – African Americans, Hispanics and Native Americans -- receive 20 points. Admissions staff can also award 20 points to scholarship athletes and socio-economically disadvantaged applicants. The provost can award another 20 points at his discretion.

Applicants can receive a range of points based on grades, test scores, essay, the state or country the applicant resides in, the quality of the high school and the difficulty of the curriculum. Children of alumni can earn four points and those who demonstrate significant personal achievement or leadership can earn up to five points.

In a system that awards up to 150 points, a student’s academic record is the most important factor. An applicant can receive up to 110 points for grades, test scores and other academic matters.

Admissions staff say there is no target number that determines whether an applicant will be admitted, but that the points system serves as a guide for the university’s rolling admissions policy.

Gratz’s lawyers say they have proved she would have been admitted had she been a minority, a fact the university does not dispute. In fact, in February 2001, U.S. District Judge Patrick Duggan ruled for Gratz, finding that the university was not justified "in using race as a factor in admissions to remedy the present effects of past discrimination."

Gratz’s case, combined with a similar case, Grutter v. Bolinger, which involves a white woman denied admission to the University of Michigan Law School, may be the most significant affirmative-action litigation in a generation.

The argument is compelling: When, if ever, should schools give preferential treatment to minorities, based solely on their race? It is a question that has elicited passionate responses from those on both sides, including President George Bush, who has denounced affirmative action in higher education.

In May 2002, the full array of the 6th Circuit Court of Appeals in Cincinnati addressed the Grutter case first, dividing 5-4 in favor of the University of Michigan’s law school. Though it noted that it would address Gratz’s challenge "in a forthcoming opinion," it has yet to rule.

In its decision concerning the law school, the 6th Circuit called upon the most important U.S. Supreme Court ruling on affirmation action thus far, Regents of the University of California v. Bakke, in 1978. In that case, the Court concluded that any racial quota system, such as the one employed by the University of California, violated the Civil Rights Act of 1964.

However, the justices also concluded that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Universities have often used the opinion as a benchmark for affirmative action admission policies. But the decision has also been criticized for its ambiguity.

In reversing the district court, the 6th Circuit majority opinion drew a distinction between the admissions system employed at the University of California at Davis in the Bakke case and that used at the University of Michigan Law School.

According to the majority, Michigan did not employ a quota system, or set aside a specific number of seats for minorities, as Davis did.

In his majority opinion, Judge Boyce Martin, Jr. wrote that Michigan attempted to reach a "critical mass" of racial and ethnic minorities, a policy that is constitutional.

According to university officials, a critical mass is a number sufficient to allow underrepresented minority students to contribute to classroom discussion without feeling isolated or like spokespersons for their race. It was not, officials said, a set number or percentage.

The lower court had also ruled that Michigan failed to explore race-neutral means of increasing minority enrollment, but the 6th Circuit majority disagreed.

"We don’t read Bakke and the Supreme Court’s subsequent decisions to require the
Law School to choose between meaningful racial and ethnic diversity and
academic selectivity," Martin wrote. "An institution of higher education must consider
race-neutral alternatives, but it need not abandon its academic mission to
achieve absolute racial and ethnic neutrality."

Martin cited statistics estimating the school’s minority population would drop by more than 30 percent if the current consideration of race in admissions were abolished. He agreed with Justice Lewis Powell’s decision in Bakke that acknowledged the state’s legitimate interest in a properly devised admissions program involving the competitive consideration of race and ethnic origin.

In his dissent, Judge Danny Boggs characterized Michigan’s system as a "straightforward instance of racial discrimination by a state institution."

According to Boggs, the 14th Amendment forbids the government from participating in "social engineering through explicit racial classifications." He argued achieving a diverse student body, as articulated by the Law School’s policy, is not a compelling state interest.

"Holding that, generally speaking, ‘diversity in education’ is a compelling state interest would not be terribly helpful," Boggs wrote. "After all, it is not clear what the term means."

Boggs stated that the law school doesn’t give an explanation of how it defines the groups to be favored. The law school, he wrote, must decide who is, and is not, an African-American, Hispanic, or Native American.

Boggs also argued that Michigan’s goal of achieving a critical mass reveals that the university seeks to enroll a particular number of minority students.

"The combination of the Law School's thinly veiled references to…a ‘critical mass,’ and relatively consistent results in achieving a particular enrollment percentage, should convince us that the Law School's admissions scheme is functionally, and even nominally, indistinguishable from a quota system." Boggs wrote.

Whether Michigan’s admissions system is the equivalent of a quota is a hotly debated question. While the trial court ruled Michigan’s admissions policy was "practically indistinguishable" from a quota system, the 6th Circuit majority disagreed. The University of Michigan insists its policy is fair.

On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case and limited review to the question noted above. The same day, the Court also accepted review in Grutter v. Bollinger, regarding the admissions policies at the University of Michigan's law school.

"The University of Michigan does not now, nor has it ever, employed quotas in its admissions procedures," said Dr. Mary Sue Coleman, President of the University of Michigan, during her 2003 speech on Martin Luther King Day at the campus. "Every applicant to Michigan competes fairly for every single seat in our classrooms and labs – just as the Supreme Court specified in Bakke."

In a speech delivered days before the holiday celebrating the slain civil rights leader, Bush called the Michigan admission policies "divisive, unfair and impossible to square with the Constitution."

"Students are being selected or rejected based primarily on the color of their skin," Bush said. "The motivation for such an admissions policy may be very good. But its result is discrimination and that discrimination is wrong."

In the amicus brief on behalf of the Bush administration, Solicitor General Theodore Olsen wrote, "This case demonstrates the pernicious consequences that result when public institutions deviate from the Court’s precedents by ignoring race neutral alternatives and employing race-based policies that amount to racial quotas."

Even if the Court agrees with the 6th Circuit majority that Michigan does not employ a quota system, the justices are still expected to decide if racial preferences used in the admission system violate the 14th Amendment.

The University of Michigan insists that racial and ethnic diversity is a compelling reason for the use of racial preferences.

"For our students to better understand the diverse country and world they inhabit, they must be immersed in a campus culture that allows them to study with, argue with and become friends with students who may be different from them," wrote Lee C. Bolinger, former University of Michigan president, dean of its law school, and current president of Columbia University.

The implications of the Court’s decision on higher education could be pervasive. Many legal experts agree that private universities and colleges would be bound because most receive some form of federal funding.

States such as California, Texas and Florida, introduced "race-neutral" admissions which guarantee spots at state universities to a top percentage of students from all high schools, including the most economically disadvantaged. Voters in California banned the use of affirmative action in university admissions altogether in 1996.

As for Gratz, who is now 25, the recent newlywed earned a degree in math from the University of Michigan at Dearborn – an inferior and less prestigious campus than her first choice, according to Gratz -- and works for a technical supply company in San Diego.

"I would have never imagined that I would be involved in a case before the Supreme Court against a big university," Gratz said.

She said many of her friends were surprised to learn of her lawsuit. Upon her rejection, she said she was too embarrassed to tell her friends that she was not accepted to Michigan. In her case, Gratz is seeking injunctive relief from the university.

"I absolutely don’t have any doubts about what I’m doing," Gratz said. "My main goal is that Michigan change its policies. Michigan chooses people solely on the color of their skin, and that is wrong."

Grutter, Barbara v. Bollinger, Lee, et al.


Appealed From: 6th Circuit Court of Appeals (May 14, 2002)

Oral Argument: April 1, 2003 (audio available)

Opinion Issued: 5-4 for Bollinger (O'Connor-June 23, 2003)

Subject: Affirmative action, race, 14th Amendment

Question(s) presented: (1) Does the University of Michigan Law School's use of racial preferences in student admissions violate the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C> 2000d), or 42 U.S.C. 1981? (2) Should an appellate court required to apply strict scrutiny to governmental race-based preferences review de novo the district court's findings because the fact issues are "constitutional?"

In 1996, Barbara Grutter applied for admission to the University of Michigan Law School in the academic year 1997-98. In applying, Grutter, a resident of the state, checked the box next to "white," in response to a question that asked each applicant to disclose his or her race.

After being placed on a "wait list," Grutter was apprised by the law school, in a letter dated June 25, 1997, that her application had been rejected.

Six months later, Grutter filed a class action suit in the Eastern District of Michigan at Detroit on behalf of herself and others from "disfavored racial groups" who were denied admissions because of the law school’s stated policy of applying different admissions standards in part based on race. The suit alleged that such policies discriminated against her on the basis of race, thereby denying her equal protection of law, in violation of federal civil rights statutes and the 14th Amendment.

By the time the district court issued its ruling on March 27, 2001, the case had become a cause celebre, with dozens of parties seeking to intervene or to offer "friend of the court" briefs. In finding for Grutter, the district court concluded that the law school’s "use of race as a factor in its admissions decisions is unconstitutional and a violation of Title VI of the 1964 Civil Rights Act." Judge Bernard Friedman concluded that the school's justification for using race — to assemble a racially diverse student population — is not a compelling state interest, and even if it were, the law school had not narrowly tailored its use of race to achieve that interest. The judge also rejected arguments that the leveling of the playing field between applicants of minority and non-minority races was necessary to achieve any compelling state interest.

On May 14, 2002, the 6th Circuit Court of Appeals issued its much-awaited opinion, upholding the law school’s admissions policies by a narrow 5-4 margin. Seven of the nine judges on the court put their own imprint on the decision, with all four dissenters writing something. At its core, the court was grappling with two perspectives; how to view the particulars of the carefully articulated admissions policies of the University of Michigan Law School and how to fit those policies into the precedent left behind by the 1978 U.S. Supreme Court opinion in Regents of the University of California v. Bakke.

The goal of the law school’s admission policy was "to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year." The policy, which was adopted in 1992, also pursued "a mix of students with varying backgrounds and experiences who will respect and learn from each other."

Traits in the mix could include: "an Olympic gold medal, a Ph.D. in physics, the attainment of age 50 in a class that otherwise lacked anyone over 30, or the experience of having been a Vietnamese boat person," the policy said.

Furthermore, the school pursued affirmative action: "There is however, a commitment to one particular type of diversity that the school has long had and should continue," the policy said. "This commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers."

To accomplish the law school’s goal of accepting a diverse group of individually and collectively the most capable students, the school looked at both hard and soft variables in its admission process, Judge Boyce Martin, Jr., wrote in the 6th Circuit’s lead opinion.

Hard variables used in the admission process consisted of a composite of an applicant’s Law School Admissions Test and undergraduate grade-point average, charted on a grid with standardized test scores on the horizontal axis and undergraduate grade-point average on the vertical axis, Martin wrote.

Soft variables used in the admission process included the "enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the essay, residency, leadership and work experience, unique talents or interests, and the areas of difficulty of undergraduate course selection," Martin continued.

Beyond the variables, the law school sometimes admitted students with low test scores, Martin wrote. The students admitted with low test scores generally fell into two categories: students with consistently poor standardized test performance in tandem with consistently outstanding academic records and students who "may help achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts," Martin wrote in citing the admission policy.

The law school didn’t set aside or reserve seats for under-represented minority students, Martin noted. To affectively pursue diversity, the law school sought a "critical mass" of minority students to "ensure that all students – minority and majority alike – will be able to enjoy the educational benefits of an academically diverse student body," Martin wrote.

Law School Dean Jeffrey Lehman had defined "critical mass" in trial testimony as having sufficient numbers such that under-represented minority students do not feel isolated or like spokespersons for their race, and do not feel uncomfortable discussing issues freely based on their personal experience, Martin added in his opinion.

Examination of grids of the law school’s admission data from 1995-2000 revealed that the relative odds of acceptance for Native American, African-American, Mexican-American, and Puerto Rican applicants were many times greater than for Caucasian applicants, Martin said in citing testimony from the unsuccessful applicant’s statistical expert.

Yet eliminating race as a factor in admission process would dramatically lower minority admissions, Martin added in citing testimony of the law school’s statistical expert. Without the consideration of race, under-represented minority students would have only constituted 4 percent of the entering class of 2000 instead of the actual enrollment of 14.5 percent, Martin concluded.

In viewing the law school’s policy against the 1978 Supreme Court opinion in Bakke, Martin observed that although Bakke prohibited the use of a quota system in race-conscious admissions as they existed at University of California at Davis, it did not rule out all uses of race or ethnicity in admissions. In the lead opinion in Bakke, Justice Lewis Powell had cautioned: "Setting aside a certain number of seats each year and utilizing a separate admission system for minority applicants was illegal, " as would be "a dual-track admissions system with a separate admissions committee and separate review process for minority applicants."

However, as Powell ultimately concluded for the Supreme Court, the goal of achieving a diverse student body was a compelling interest of an institution of higher education, and a permissible example where race and ethnicity were used in the admission process, according to Powell’s majority opinion, was the Harvard admission plan.

At Harvard, "race or ethnicity was deemed a ‘plus’ but did not insulate a minority applicant form comparison with other applicants," Powell wrote in Bakke. The Harvard plan treated each applicant as an individual in the admissions process.

Furthermore, "The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname," Bakke read. Rather, denied admission "would mean only that his combines qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant."

"A ‘plus’ program – unlike a quota – lacked a ‘facial intent to discriminate,’" Powell had written. "Emphasizing that the fine distinction between a ‘plus’ system and a quota system was both discernable and constitutionally significant, Powell recalled Justice Felix Frankfurter’s declaration that "[a] boundary line is none the worse for being narrow."

In the 6th Circuit’s lead opinion, Judge Martin recalled both.

In Bakke, Justice William Brennan had concurred in part and dissented in part with Powell’s lead opinion. In expressing support in Bakke for Harvard’s plan in the first footnote of his opinion, Brennan noted: "We also agree with Mr. Justice Powell that a plan like the ‘Harvard’ plan… is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination."

In Grutter, the District Court had concluded race-conscious admissions policies were only justifiable in circumstances where it remedies specific past discrimination, basing its ruling on the post-Bakke Supreme Court opinions, first in City of Richmond v. J.A. Croson Co. in 1989, then in Adarand Constructors, Inc. v. Pena six years after that.

Judge Martin criticized the District Court’s decision in his majority opinion: "Adopting the district court’s conclusion that the Law School could only justify race-conscious admissions decisions as a remedy for specific past discrimination would necessitate a finding that the Supreme Court has implicitly overruled Bakke," The Supreme Court alone retains the ability to overrule its decisions, Martin wrote.

Additionally, Martin found institutions of higher learning had been using the Supreme Court’s Bakke decision as a model for more than 20 years.

The 6th Circuit also found that Michigan’s law school had "drafted its admissions policy to comply with the Supreme Court’s opinion in Bakke," and from Bakke it could conclude a ‘plus’ system found at the University of Michigan’s Law School does not offend the Equal Protection Clause," Martin said in citing Justice Powell’s majority opinion in Bakke.

Since Bakke, the Supreme Court has done nothing to render this description of Justice Powell’s opinion any different than the ‘Law of the Land,’ Judge Eric Clay wrote in concurring with Martin. Clay wrote separately to speak to the "misrepresentations made by Judge Danny Boggs in his dissenting opinion."

In that dissent, Boggs questioned how applicable Bakke was to other cases: "Unfortunately, no policy other than the specific one utilized by UC Davis was before the Court," Boggs wrote. "We cannot come up with a ‘holding’ that is any more specific than that UC Davis’ plan (and all plans that absolutely reserve a specific number of seats for the racially favored) was unconstitutional, and that some type of racial preference may be constitutional."

Boggs was not willing to justify Michigan’s policies by looking to Bakke , "Even if student diversity were a compelling state interest, the law School’s admissions scheme could not be considered narrowly tailored to that interest."

"Between 1995 and 1998, the last four years for which we have data, the Law School consistently enrolled a number of under-represented minorities constituting 13.5 to 13.7 percent of the class enrolled," Boggs wrote. "I take no comfort in the statistically minor variations in minority enrolment," he said.

The 6th Circuit majority had emerged with the opposite conclusion: "We are satisfied that the Law School’s ‘critical mass’ is not the equivalent of a quota, because unlike Davis’s reservations of sixteen spots for minority candidates, the Law School has no fixed goal or target."

Boggs not only differed in his dissent, but described the law school’s commitment to diversity as "the primary problem."

"Whether viewed as a percentage or as an absolute number, the consistence in the minority student enrollment demonstrates that the Law School has for all practical purposes set aside a certain number of seats for minority students. The ‘critical mass’ therefore appears to be a euphemism for the quota system that Bakke explicitly prohibits," he wrote.

As Grutter sought review from the U.S. Supreme Court, numerous groups and institutions, including the State of Alabama, filed amicus briefs urging the Court to take the case.

On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case, the same day as it accepted Gratz v. Bollinger, which addressed affirmative action in admission to the University of Michigan’s undergraduate program.

"Our law school prepares a group of highly talented students for leadership in the modern legal profession," Michigan Law School Dean Lehman said in a speech the day the Court accepted the case.

"We care about both the quality of the students we admit to our school and the quality of the education we provide them. An important aspect of that education derives from vibrant and challenging interactions among students inside and outside the classroom. Thus, in deciding whether to admit an applicant to the law school, we consider all available evidence of analytic ability and work ethic, as well as what difference an applicant's presence in the class would likely make to the overall student experience."

After the Court announced it was taking the case, hundreds of groups coalesced to add their friend of the Court briefs to the pile. The most notable was that of the United States, which filed its brief supporting Grutter on Jan. 16, 2003. The day before, President George W. Bush addressed the Nation to direct attention to the government’s action.

"At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students, based solely on their race," Bush said.

"Our Constitution makes it clear that people of all races must be treated equally under the law," Bush said. "Yet we know that our society has not fully achieved that ideal. Racial prejudice is a reality in America. It hurts many of our citizens. As a nation, as a government, as individuals, we must be vigilant in responding to prejudice wherever we find it. Yet, as we work to address the wrong of racial prejudice, we must not use means that create another wrong, and thus perpetuate our divisions.

"America is a diverse country, racially, economically, and ethnically. And our institutions of higher education should reflect our diversity," Bush added. "A college education should teach respect and understanding and goodwill. And these values are strengthened when students live and learn with people from many backgrounds. Yet quota systems that use race to include or exclude people from higher education and the opportunities it offers are divisive, unfair and impossible to square with the Constitution."




High Court To Review Race-Based Admissions
Michigan Claims Set Stage for Fight Over College Access

By Charles Lane
Washington Post Staff Writer
Tuesday, December 3, 2002; Page A01

The Supreme Court announced yesterday that it would decide whether race-conscious university admissions procedures intended to promote racial and ethnic diversity illegally discriminate against white applicants -- setting the stage for a historic battle at the court over access to American higher education.

At issue are claims by prospective students who say they were rejected by the University of Michigan's undergraduate program and law school because they are white. The applicants say Michigan uses admissions criteria that systematically shut out whites in favor of African Americans and other minorities with the same or lower grades and test scores.

But Michigan says its admissions process considers each applicant as an individual, factoring in race only as part of an effort to ensure all students the benefits of learning in an ethnically diverse environment.

It is a rationale invoked by hundreds of other colleges and universities, many of which say that without affirmative action, they would go back to being nearly all-white.

A high-profile Supreme Court case over race-based admissions could rekindle the wider political debate over affirmative action, which became a "wedge issue," pushing many white voters from Democratic to Republican ranks in the 1980s and '90s before receding in recent years.

The case is potentially sensitive for the Bush administration, whose core conservative supporters oppose affirmative action, but whose outreach efforts have targeted Hispanics and other minority voters.

Noting that "race is among the factors considered by virtually every selective college and university," Michigan President Mary Sue Coleman said, "[t]here is no effective substitute for the consideration of race as one of many factors in our admissions process. Other methods do not allow us to recruit a diverse student body while maintaining our consistently high academic standards."

In choosing applicants for admission, the university relies in part on charts ranking them by grades and test scores -- but uses separate charts for white and minority students.

"No matter how the majority rules, the court now can't help but make a historic decision," said Terence J. Pell, chief executive of the Washington-based Center for Individual Rights, a public-interest group that represents the white students in the litigation. "The court is clearly serving notice to all interested parties that high noon is fast approaching."

The Michigan issues "represent the most significant civil rights cases the Supreme Court will have decided in the last quarter-century," said Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, which represents minority students at Michigan.

Shaw unsuccessfully urged the court to consider whether the Michigan policy is lawful both for diversity reasons and as a remedy for the lingering effects of past racial discrimination.

Specifically, the court will consider whether Michigan is violating Title VI of the Civil Rights Act, which bars racial discrimination by federally funded institutions, or the clause of the Constitution's 14th Amendment that guarantees equal treatment for all citizens under state law -- or both. Arguments will be held in March, and decisions are expected by July.

At the heart of the university admissions issue is the court's splintered ruling in the 1978 case of Allen Bakke, a white applicant who was denied admission to medical school at the University of California at Davis, which reserved 16 percent of its spots for minorities.

Four justices -- two of whom, Chief Justice William H. Rehnquist and Justice John Paul Stevens, are still on the court -- ruled that the quota violated Title VI. Four others said that even quotas could be constitutional if imposed to help minorities overcome discrimination.

The ninth vote in the Bakke case came from the late Justice Lewis F. Powell Jr., who wrote his own opinion agreeing that quotas were impermissible, but saying that the use of race as a "plus factor" in the pursuit of diversity could be allowed.

Since then, educational institutions have said that a majority of the justices in the Bakke case approved of some use of race and have relied on the Powell opinion's reasoning in fashioning admissions programs that look at applicants' race as well as other factors, such as grades and extracurricular interests.

But opponents of affirmative action in university admissions say Powell's opinion did not establish the court's holding. They are confident of victory now partly because, since Bakke, the court has taken a dim view of race-based affirmative action in other contexts.

Indeed, under Supreme Court precedent, Michigan must convince the court that diversity is a "compelling" objective -- and that its use of race is carefully designed to meet it.

Rehnquist, Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas are considered the court's strongest opponents of affirmative action. Stevens, who has grown more liberal in his years on the bench, and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are likely to be most sympathetic to Michigan's case.

As is so often the case, legal analysts say the probable swing vote belongs to Justice Sandra Day O'Connor.

The Michigan case represents the culmination of a series of lawsuits by white applicants who challenged the "diversity rationale," saying that it produces de facto quotas.

At issue now are two such challenges. The first is by Jennifer Gratz and Patrick Hamacher, who were denied admission as undergraduates in 1995 and 1997, respectively. Their lawyers note that, according to the chart used by Michigan's admissions officers, African American and Latino students with Gratz's grades and SAT scores were guaranteed a place in the class, but two out of three similarly situated whites were excluded.

The second case, brought by Barbara Grutter against Michigan's law school, alleges that she was denied admission under a system that, in the name of ensuring a "critical mass" of minority enrollment, created a de facto minority quota.

One U.S. district judge in Michigan upheld the undergraduate program, and another struck down the law school program.

The cases were appealed to the Cincinnati-based U.S. Court of Appeals for the 6th Circuit. In May, that court, bitterly divided, ruled 5 to 4 that the law school program was constitutional based on Powell's opinion in the Bakke case. That ruling differed from rulings by appeals courts in New Orleans and Atlanta and coincided with one by a San Francisco-based appeals court.

As a result of this disagreement, lawyers from the Center for Individual Rights appealed the law school case to the Supreme Court. But because the 6th Circuit has still not issued a ruling on the undergraduate case, they also asked the justices to hear it under a special provision of Supreme Court rules.

Michigan objected to hearing either case but told the court that if it agreed to hear the law school case, it should hear the undergraduate case because they are so closely related.

The cases are Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516.

© 2002 The Washington Post Company


O'Connor Questions Foes of U-Michigan Policy
Justice Seen as Holding Likely Swing Vote as Court Weighs Affirmative Action Cases

By Charles Lane
Washington Post Staff Writer
Wednesday, April 2, 2003; Page A01

A key member of the Supreme Court aimed a series of skeptical questions at opponents of race-conscious university admissions as the court heard oral arguments yesterday in the most important civil rights cases of the past quarter-century.

Justice Sandra Day O'Connor, widely viewed as holding the likely swing vote on an otherwise evenly divided court, seemed to take issue with the idea that University of Michigan admissions criteria intended to boost minority enrollment were necessarily to blame for the rejection of Barbara Grutter and other white students.

"How are we certain," she asked their attorney, "that there is an injury to your client that she wouldn't have experienced for other reasons?"

O'Connor said that their insistence on absolute color-blindness in admissions might be too inflexible. "You're speaking in absolutes, and it isn't quite that," she said. "I think we have given recognition to the use of race in a variety of settings."

Her remarks were among the most intriguing in a debate whose drama was commensurate with cases that could determine the consideration of race not only in college admissions but possibly in other realms as well.

As affirmative action faced its most important legal test since 1978, several thousand supporters of the concept rallied outside the Supreme Court building while the justices heard arguments in the two cases. Shortly after the arguments were completed, the court took the unusual step of making an audiotape of the proceedings publicly available. The last time the justices did that was in 2000, for the cases related to that year's presidential election.

At a time when the country's attention is occupied by the war in Iraq, several justices even implied that the country's national security might be affected by the outcome of the cases.

Two different admissions policies at the University of Michigan are at issue in the two cases that were argued yesterday, Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516.

Grutter is a challenge to the university's law school admissions program, which gives African American, Latino and Native American applicants a loosely defined special consideration to ensure that there is a "critical mass" of such students in each new class.

Gratz is a challenge to the university's undergraduate admissions policy, which tries to ensure a "critical mass" of African American, Latino and Native American enrollments by giving such applicants an automatic 20-point bonus on the school's 150-point "selection index."

The university argues that its programs, which are similar to admissions policies at many other selective institutions, are designed to create educationally beneficial "diversity" in its student population. It says that this rationale was endorsed by the Supreme Court in the 1978 Bakke case.

In that case, the court ruled that universities could not set fixed numerical quotas for minority admissions as a remedy for past discrimination, but a separate opinion by Justice Lewis F. Powell Jr. left open the possibility that the schools could use race to achieve diversity in the hope of providing a better learning environment for all races, and universities have treated it as a binding precedent ever since.

Opponents of affirmative action contend that that position is far too vague and open-ended a notion to justify the violation of whites' clear constitutional right to equal treatment under the law. Admissions policies such as Michigan's are the practical equivalent of quotas, they argue.

Recent Supreme Court precedents have endorsed the notion that there is no constitutional distinction between racial discrimination intended to harm blacks and other minorities and programs intended to help them. Any racial classification, the court has held, must be carefully crafted to achieve a "compelling" government purpose, with the least possible harm to others' rights.

The Bush administration has attacked Michigan's programs on this "narrow tailoring" basis, arguing in a brief to the court that state universities must attempt race-neutral methods of ensuring diversity.

But until now, the court has not squarely revisited the issue of college and professional school admissions since Bakke.

The cases will affect affirmative action not only at state universities such as Michigan's but also private universities, since federal law forbids racial discrimination by institutions that receive federal funding, as most universities do.

National security considerations unexpectedly entered the debate yesterday when Justices Ruth Bader Ginsburg and John Paul Stevens, both clearly sympathetic to the Michigan program, pressed President Bush's solicitor general, Theodore B. Olson, to present his view on similar programs at the nation's military academies.

In a friend-of-the-court brief, retired Gen. H. Norman Schwarzkopf and other former top-ranking members of the armed forces argued that the fighting capability of the multiethnic U.S. military depends on minority officers produced through affirmative action at the service academies. Unstated, but obvious, was the broader context: the current battle for a Muslim country's liberation being waged by multiethnic U.S. Army and Marine platoons.

Speaking for an administration that both opposes the Michigan program and operates the service academies, Olson said that all institutions should seek race-neutral means to ensure diversity, playing down the officers' brief as "the opinion of certain individuals."

Ginsburg did not seem satisfied, noting that, by Olson's logic, the service academies' policies would be "illegal."

The opponents of affirmative action in the court scored points of their own.                                  

Justice Antonin Scalia led Maureen Mahoney, a lawyer for the university, through an extended interrogation intended to show that the law school's "critical mass" policy -- which has produced minority enrollments ranging from 12 percent to 17 percent of the school's entering classes -- was just a euphemism for a quota. As Scalia put it, "once you use the terms 'critical mass,' you're in Quota Land."

"Your honor, what a quota is, under this court's cases, is a fixed number," Mahoney replied. "And there is no fixed number here."

That discussion gave way to what seemed to be O'Connor's most significant expression of concern about the Michigan policies. She noted that all previous affirmative action programs that the court has upheld were for a "fixed time period . . . you could see an end to it." In contrast, she said, Michigan seems to be advocating something open-ended.

"I don't think the court should conclude this is permanent," Mahoney answered, noting that educational institutions could conclude that there is no longer a need to use race-conscious admissions when minorities catch up with whites in grades and test scores, or when "we reach a point in society where the experience of being a minority no longer makes such a fundamental difference in their lives."

Perhaps sensing an opportunity to reinforce O'Connor's doubts, Scalia raised the same point later with John Payton, another lawyer for Michigan.

"When does all of this come to an end?" Scalia asked simply.

Payton acknowledged that "it was a surprise" that the gap between white and minority achievement has persisted so long after Bakke, creating what universities still consider a need for affirmative action 25 years later, but he added: "We're confident this is going to last for a finite period of time."

Payton, who is African American, spoke with evident emotion toward the end of his argument as he told the justices that diversity is crucial to ensure that students who would otherwise grow up in segregated surroundings can overcome stereotypes and "be able to do things together."

But Payton's effort was somewhat undercut by the court's only African American member, Clarence Thomas. Thomas asked Payton whether his view that diversity is crucial to a good education doesn't weaken the case for historically black colleges.

"Would the same arguments apply to them?" Thomas asked.

Payton said such institutions "do have diverse student bodies."

Decisions in the cases are expected by July.

© 2003 The Washington Post Company



Affirmative Action's Confusing Curriculum
Ruling Against University of Georgia's System Is Latest in Series of Conflicting Court Decisions

By Edward Walsh
Washington Post Staff Writer
Tuesday, September 4, 2001; Page A02

In the mid-1990s, officials at the University of Georgia thought they had devised a system to achieve two important goals: creating a more racially diverse student body at the state's major public university while remaining within the confines of the increasingly confusing legal guidelines governing affirmative action programs.

The key to the Georgia system was called the Total Student Index (TSI). Under it, students who were not automatically admitted on the basis of high school grades and standardized test scores, but who were close to qualifying, were assigned numerical scores based on about a dozen factors, such as whether they would be the first in their family to attend college. A high TSI score was often enough to pull the student into the incoming freshman class.

Race was only one of the TSI factors, but it carried the most weight, giving all nonwhite applicants a significant boost. But university officials reasoned that they were safely within the law because, in 1978, the swing vote on a divided Supreme Court said that attaining a diverse student body was a constitutionally permissible goal for colleges and universities, and that "ethnic diversity" was one element that school administrators could consider in pursuing that goal.

Last week, a three-judge federal appeals court panel in Atlanta told the University of Georgia officials that they were wrong.

The ruling by the 11th U.S. Circuit Court of Appeals panel was the latest in a series of court decisions that have further muddled the issue of affirmative action in higher education. Two other federal appeals courts have addressed the question in recent years and they reached opposite conclusions, one upholding the use of race as a factor in admissions and the other rejecting it. The Supreme Court refused to review either decision.

Meanwhile, two federal district court judges have separately upheld the undergraduate admissions policy at the University of Michigan and struck down the law school admissions policy at the same school. Those rulings have been appealed and could eventually reach the Supreme Court.

Amid these confusing signals, colleges and universities have been reevaluating their admissions policies with an eye on the courts, said Sheldon E. Steinbach, general counsel of the American Council on Education.

"It does encompass some degree of gazing into a crystal ball," he said. "It is not clear what is clearly permissible. I think almost every major state system has gone through it to make sure they are not totally out of compliance."

Experts in higher education said variations of the University of Georgia admissions system are widely used at large, public universities across the country. One reason is that, unlike elite private universities, these public institutions lack the resources to review every student application individually. Instead, applicants are assigned numerical scores based on their grades, test scores and other factors, which often include race, to determine who qualifies for admission.

Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, said the big state schools have little choice. "You could keep the entire faculty reading applications all year and not get through them," he said.

The University of Georgia, which gets about 14,000 applications a year, made that argument before the appeals court. But writing for the unanimous three-judge panel, Judge Stanley Marcus said: "The rejoinder to this is obvious: If UGA wants to ensure diversity through its admissions decisions, and wants race to be part of that calculus, then it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups."

Marcus and the other judges ruled that the TSI system was a "rigid, mechanical approach" that did not meet the constitutional standard that any race-conscious policy must be "narrowly tailored" to achieve a permissible goal.

The Georgia ruling, as have some of the earlier federal court decisions, also called into question a central tenet of higher education affirmative action programs: whether attaining a diverse student body is a "compelling" state interest that would justify a race-conscious admissions policy. Higher education officials argue that it is.

"The debate has gotten so technical and high-stakes that what is getting lost is the concept of the education goals of the institutions," Nassirian said. "There really is an educational dimension to the basic task of putting [an incoming] class together that does involve some measure of diversity. You cannot have a major research institution of a state with a class that does not reflect the society around it."

The appeals court panel did not reject this argument but said that it remains an open question. The root of this legal dispute, the panel said, lies in the nature of the Supreme Court's 1978 Bakke decision, the case that is the foundation for higher education affirmative action programs.

In that decision, a five-justice majority struck down the use of a separate admissions system for minority applicants at the University of California at Davis medical school. But a different five-justice majority also reversed a California Supreme Court ruling that prohibited any consideration of race in admissions.

The late Justice Lewis F. Powell Jr. was the key vote in both majorities, and it is his opinion, saying that universities could consider race as one factor in seeking the "compelling" goal of a diverse student body, that the University of Georgia and others have relied on in devising affirmative action programs.

But the appeals court panel noted that no other justice joined in Powell's opinion. "We think it important to underscore that the constitutional viability of student body diversity as a compelling interest is an open question, and ultimately is one that, because of its great importance, warrants consideration by the Supreme Court," the panel said.

Legal and higher education experts agree that eventually the Supreme Court will have to revisit the issue to sort out the growing confusion over the meaning of the Bakke decision.

"Bakke is so controversial because it's very hard to tell how many justices were agreeing with Powell," said Ann D. Springer, associate counsel of the American Association of University Professors. "There is increasing disagreement over what it meant."

© 2001 The Washington Post Company



Universities Alter Recruiting
Race-Neutral Admission Tactics Found to Boost Diversity

By Michael A. Fletcher
Washington Post Staff Writer
Tuesday, December 3, 2002; Page A10

Immediately after a federal appeals court outlawed the University of Georgia's race-conscious affirmative action program last year, the school initiated a stepped-up plan for recruiting minority students.

The university opened two recruitment offices in heavily minority areas of the state. It brought groups of minority students and their parents in for campus visits. And it developed mailings directed at high-achieving minority high school students.

The effort paid off: 13 percent of this year's 4,300 freshmen were minorities, a slight increase over last year's total, when a race-conscious affirmative action program was still in effect.

The Georgia plan is among several alternatives for attracting minority students that colleges and universities have initiated amid the legal uncertainty surrounding affirmative action programs.

So far, the university recruitment strategies seem to be working. In 1999, minorities accounted for 28 percent of the nation's higher education enrollment, a substantial increase over 1990, when minorities made up 20 percent of the nation's higher education population. Similarly, the number of bachelor's degrees awarded to minorities more than doubled in the 1990s, according to the American Council on Education.

Many higher education officials expect that the U.S. Supreme Court, which decided yesterday to review the constitutionality of the University of Michigan's race-conscious admissions policy, will clarify the law when it rules next year.

In recent years, admissions policies that consider race as a factor in enrolling students have been outlawed in seven states -- Washington, California, Texas, Louisiana, Mississippi, Georgia and Florida -- leaving the nation with a patchwork quilt of practices regarding affirmative action in higher education.

"Right now, what we have is confusion," said Patricia Mendoza, a lawyer with the Mexican American Legal Defense and Educational Fund. "We have some jurisdictions where affirmative action has been outlawed, and others where it remains legal. In still other places, other measures have been implemented in an attempt to soften the impact of outlawing affirmative action on minorities."

As courts around the country have handed down conflicting opinions, most schools have continued with their race-conscious affirmative action programs. The legal guide for most of those programs is the 1978 ruling by a divided U.S. Supreme Court in the University of California Regents v. Bakke. That decision is widely interpreted by universities as allowing schools to consider an applicant's race as one of many factors in making an admissions decision.

In places where affirmative action has been struck down, universities are often pursuing strategies to bolster minority enrollment without explicitly choosing students because of their race. Instead, schools extend their outreach efforts or guarantee admission to students who graduate in the top tiers of their high school classes.

"Universities have begun to look into creative means, without using race as a specific criterion, to continue to seek a diverse student body," said Sheldon Steinbach, general counsel of the American Council on Education.

In Texas, for example, students are guaranteed a spot in the public university of their choice so long as they graduate in the top 10 percent of their high school class. California guarantees admission to students who graduate in the top 4 percent, while any Florida student who graduates in the top 20 percent of his class is guaranteed a seat at a public university.

These programs generally have proven successful in attracting students to undergraduate programs from the many schools that are predominantly black or Latino. After an initial decline in black and Hispanic enrollment, it rebounded at public universities in those states.

"The overall picture is that a number of race-neutral policies do work," said Curt Levey, director of legal and public affairs for the Center for Individual Rights, a public-interest law firm that has challenged affirmative action programs across the country. "The great irony is that it takes lawsuits or similar actions to get schools to do what they should have been doing all along."

Affirmative action proponents, however, say those policies are inadequate and do nothing to address diversity in graduate and professional schools. "There is no substitute for consciously and deliberately doing what you set out to do," said Theodore M. Shaw, associate director-counsel for the NAACP Legal Defense and Educational Fund.

Also, they said, many people do not realize that colleges routinely consider far more than standardized test scores and grades when admitting students. A student's special talents, where they live or whether their parents are alumni of a school can often have a bearing on admissions decisions.

If people knew that, they said, they would be less resentful of race-based admissions policies.

"On the face of it, it seems like only blacks and Latinos benefit from college admissions policies," said Godfrey J. Dillard, a lawyer representing a group of high school students and others who intervened in the University of Michigan case. "But, actually, many whites benefit from college admissions schemes."

© 2002 The Washington Post Company




More Minorities Enter University Of California

Associated Press
Saturday, April 6, 2002; Page A07

SAN DIEGO, April 5 -- For the first time since it abolished affirmative action, the University of California system has admitted more minority students than it did during the last days of its race-based admissions policies.

Of the 48,369 students admitted to this fall's freshman class, 19.1 percent were from Hispanic, black or American Indian backgrounds. That is up from 18.8 percent in 1997, the last year the public university system used race as a factor in admission.

The University of California at San Diego saw the greatest leap in admissions of minority students, from 11.5 percent last year to 14.4 percent in 2002.

Critics of affirmative action embraced the figures as proof that race has no place in the admissions process.

"I don't mean to gloat, but I told you so," said Ward Connerly, a UC regent, who is black. "We've been saying for a long time that these kids don't need any special treatment to get into the UC system."

Others said the historical disadvantages that minorities experience need to be weighed.

"Minority students are more likely to have parents who suffered housing and education discrimination and are at a disadvantage," said Delaine Eastin, the California superintendent of public instruction. "Today we're still at a place where we can document discrimination. I still think it's a relevant factor to consider."

Despite the gains for the system as a whole, the number of minority students admitted to UC's most competitive campuses has not rebounded to the same extent.

At UCLA, for example, there are more black and Hispanic students in the freshman class than last year, but its total number of minority admissions, 1,675, is below the 2,010 the campus accepted in 1997.

UC-Berkeley and UC-Irvine also have not returned to levels before the ban.

© 2002 The Washington Post Company




Texas Colleges' Diversity Plan May Be New Model

By Lee Hockstader
Washington Post Staff Writer
Monday, November 4, 2002; Page A01

AUSTIN -- Jazmin Padron arrived in Texas three years ago, a bright-eyed Mexican teenager with little English and no thought of attending college. A top high school student, she's now all but assured admission to the University of Texas at Austin.

Davin Hunt always assumed he'd go to college, and no wonder -- his parents and 20 of his cousins attended UT-Austin, and virtually all the students at his rich, almost uniformly white high school near Dallas go on to higher education, many of them to top colleges. But Hunt, whose grades don't quite make the top 10 percent of his class, may not be joining the family's Longhorn tradition.

Beyond their Texas residency and sunny dispositions, Padron and Hunt have little in common. But both are busy adapting their calculations about the future to accommodate a five-year-old state law under which the top 10 percent of every high school's graduating seniors are automatically eligible for admission to public universities in Texas.

Now, as the U.S. Supreme Court weighs whether to rule on the constitutionality of affirmative action in college admissions, Texas's law is being scrutinized as a model that could replace the explicitly race-based admissions criteria that have been a feature of public education for decades. Following the Texas law, which first applied to high school seniors graduating in 1998, Florida and California adopted percentage plans for admission to state-funded colleges, and other states are watching Texas's experience closely.

It came after a federal appeals court in 1996 threw out the University of Texas Law School's affirmative action program, saying admission officers could no longer consider race when picking students. African American and Hispanic student enrollments plummeted.

State lawmakers swiftly enacted the 10 percent law, intending to ensure continued diversity at public universities without inviting further constitutional challenges. As long as neighborhoods and the state's 1,800 or so high schools remained largely segregated by race, significant numbers of African American and Hispanic students would be guaranteed places at public universities. Conservatives who never liked explicitly race-based admissions criteria found little to object to in the meritocratic gloss of the new law.

To university officials, who openly regret the death of affirmative action, the 10 percent law is a way to achieve its goals without adopting the means -- "You're doing it without doing it," said Mark Yudof, chancellor of the University of Texas's 180,000-student system. "It's a benign effort to achieve a certain sort of social justice. . . . We don't want a permanent underclass in America."

For Padron, the Mexican immigrant who is now a senior at a middle-class high school in Austin, the 10 percent rule has removed most of the anxiety associated with college applications. A top student and promising dancer, she found out a few weeks ago that she was guaranteed admission to any state-funded university she liked, including the flagship campus of UT-Austin. "I couldn't believe it," she said, grinning. She plans to go, and would be the first in her family to attend college.

For Hunt, a senior at the ultra-competitive Highland Park High School in suburban Dallas, the Texas law has clouded his prospects. Although he is a good student, active in student government and sports, his grades are not in the very top tier. That may have harmed his chances at getting into his first choice, UT-Austin's business program, which is largely filled with top 10 percenters -- some of them students with lower SAT scores from less competitive schools. Although his overall strong record may yet win him a spot in some other program at UT-Austin, he's thinking about leaving the state for college.

He said he didn't begrudge minority students such as Padron their guaranteed admission to state-funded universities, even though he faces much tougher academic challenges and may score far higher on standardized tests such as the SAT. Many minority high-achievers are "doing it on their own, independently," he said. The 10 percent law is "still fair, though it's reverse discrimination. So it's a kind of oxymoron."

At Highland Park, considered among the best, richest and most competitive public high schools in the nation, the 10 percent law has intensified what students and faculty describe as an already unhealthy tendency toward grade-grubbing, cheating, standardized-test coaching and choosing classes known for dispensing easy A's. Choir has become an inordinately popular course selection.

"Everything is just GPA, GPA, GPA," said Natalie Fogiel, a Highland Park senior just outside the top 10 percent of her class. "The focus is on grades rather than experience."

The law's effect on the student body makeup at UT-Austin has been subtle. Overall, the proportion of top 10 percent students in the freshman class has edged up to 53 percent in the current first-year class, from 46 percent in 1997, just before the law took effect.

After the initial, sharp drop in minority enrollment following the appeals court's decision, the 10 percent law has helped the numbers of African American and Hispanic freshmen recover approximately to their previous levels. More than 14 percent of this year's entering class is Hispanic; about 3.5 percent is black.

Still, those numbers fall well short of the overall minority population in Texas, which is about 30 percent Hispanic and 12 percent black. The primary beneficiary of the new rule has been Asian Americans, who are enrolling at UT-Austin and other state-supported schools at levels disproportionate to their numbers in the state. Of this year's freshman class at UT-Austin, nearly 15 percent are Asian Americans, although they constitute scarcely 2.7 percent of the state's population.

University officials acknowledge they have failed to attract anything approaching representative numbers of blacks and other groups that have traditionally not produced college-bound students. About 700 high schools across the state, many of them predominantly minority, are still not sending any graduating seniors to UT-Austin. And many black graduates, including those at the top of their class and automatically eligible for admission, don't even apply to state-funded universities in Texas.

At L.G. Pinkston High School in Dallas, split almost evenly between African Americans and Hispanics, nearly a third of the graduates go on to college, but very few of the blacks go to state-supported colleges and virtually none go to the best of them, UT-Austin. The principal, J. Leonard Wright, has nudged the best students toward higher education by introducing advanced placement classes and free college test preparation courses. But he said he urges the cream of the crop to go to traditionally black colleges, where he believes they will feel more comfortable than at the predominantly white University of Texas.

Undric Hamilton, a black senior at Pinkston near the top of his class, picked up on that theme. He plans to go to college, but not UT. Black students "feel more comfortable" at traditionally black schools, he said. "I'd rather be a name than a number."

"We haven't solved that," said Bruce Walker, admissions director for UT-Austin, which received about 22,000 applications last year for its freshman class of nearly 8,000.

He said one group excluded in many instances by the law is blacks from middle-class and suburban high schools ranked just below the highest 10 percent of their class. Before the federal appellate court decision, the university's affirmative action policy allowed for those students to be admitted. Now, Walker said, "that's the group we're missing."

In some cases, top minority students never consider going to college. In other cases, tuition and fees -- even the $40 application fee -- are just too high. To sweep in promising minority students, the university has taken steps that seem a lot like affirmative action, albeit under a different name. The full scholarship Longhorn Scholars program targets 70 low-income high schools whose graduates have not attended UT-Austin in the past; about 85 percent of the Longhorn Scholars are black or Hispanic.

All 300 Longhorn Scholars in this year's freshman class are top 10 percenters, but their average combined SAT scores are around 900, about 200 points below the average of other freshmen. Yet with extensive help from the university -- special counseling and mentoring programs, classes with top professors, interdisciplinary courses -- Longhorn students are performing as well as and in many cases better than their classmates.

"These kids are in very rough classes, but they're getting lots of guidance and support," said Lucia Gilbert, vice provost in charge of the program.

Other university officials have pronounced themselves more or less satisfied with the new system, while continuing to rue the passing of affirmative action. "There's no perfect admissions system," said Yudof, the chancellor. "But 10 percent is pretty good."

© 2002 The Washington Post Company





by Borgna Brunner








March 6, 1961

Executive Order 10925 makes the first reference to "affirmative action"

President John F. Kennedy issues Executive Order 10925, which creates the Committee on Equal Employment Opportunity and mandates that projects financed with federal funds "take affirmative action" to ensure that hiring and employment practices are free of racial bias.

July 2, 1964

Civil Rights Act signed by President Lyndon Johnson

The most sweeping civil rights legislation since Reconstruction, the Civil Rights Act prohibits discrimination of all kinds based on race, color, religion, or national origin.

June 4, 1965

Speech defining concept of affirmative action

In an eloquent speech to the graduating class at Howard University, President Johnson frames the concept underlying affirmative action, asserting that civil rights laws alone are not enough to remedy discrimination:

"You do not wipe away the scars of centuries by saying: 'now, you are free to go where you want, do as you desire, and choose the leaders you please.' You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'you are free to compete with all the others,' and still justly believe you have been completely fair . . . This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity—not just legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result."

Sept. 24, 1965

Executive Order 11246 enforces affirmative action for the first time

Issued by President Johnson, the executive order requires government contractors to "take affirmative action" toward prospective minority employees in all aspects of hiring and employment. Contractors must take specific measures to ensure equality in hiring and must document these efforts. On Oct. 13, 1967, the order was amended to cover discrimination on the basis of gender.


The Philadelphia Order

Initiated by President Richard Nixon, the "Philadelphia Order" was the most forceful plan thus far to guarantee fair hiring practices in construction jobs. Philadelphia was selected as the test case because, as assistant secretary of labor Arthur Fletcher explained, "The craft unions and the construction industry are among the most egregious offenders against equal opportunity laws . . . openly hostile toward letting blacks into their closed circle." The order included definite "goals and timetables." As President Nixon asserted, "We would not impose quotas, but would require federal contractors to show 'affirmative action' to meet the goals of increasing minority employment."

June 28, 1978

Regents of the University of California v. Bakke

This landmark Supreme Court case imposed limitations on affirmative action to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority—affirmative action was unfair if it led to reverse discrimination. The case involved the Univ. of California, Davis, Medical School, which had two separate admissions pools, one for standard applicants, and another for minority and economically disadvantaged students. The school reserved 16 of its 100 places for this latter group.

Allan Bakke, a white applicant, was rejected twice even though there were minority applicants admitted with significantly lower scores than his. Bakke maintained that judging him on the basis of his race was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court ruled that while race was a legitimate factor in school admissions, the use of such inflexible quotas as the medical school had set aside was not. The Supreme Court, however, was split 5–4 in its decision on the Bakke case and addressed only a minimal number of the many complex issues that had sprung up about affirmative action.

July 2, 1980

Fullilove v. Klutznick

While Bakke struck down strict quotas, in Fullilove the Supreme Court ruled that some modest quotas were perfectly constitutional. The Court upheld a federal law requiring that 15% of funds for public works be set aside for qualified minority contractors. The "narrowed focus and limited extent" of the affirmative action program did not violate the equal rights of non-minority contractors, according to the Court—there was no "allocation of federal funds according to inflexible percentages solely based on race or ethnicity."

May 19, 1986

Wygant v. Jackson Board of Education

This case challenged a school board's policy of protecting minority employees by laying off non-minority teachers first, even though the non-minority employees had seniority. The Supreme Court ruled against the school board, maintaining that the injury suffered by non-minorities affected could not justify the benefits to minorities: "We have previously expressed concern over the burden that a preferential-layoffs scheme imposes on innocent parties. In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job."

Feb. 25, 1987

United States v. Paradise

In July 1970, a federal court found that the State of Alabama Department of Public Safety systematically discriminated against blacks in hiring: "in the thirty-seven-year history of the patrol there has never been a black trooper." The court ordered that the state reform its hiring practices to end "pervasive, systematic, and obstinate discriminatory exclusion of blacks." A full 12 years and several lawsuits later, the department still had not promoted any blacks above entry level nor had they implemented a racially fair hiring system. In response, the court ordered specific racial quotas to correct the situation. For every white hired or promoted, one black would also be hired or promoted until at least 25% of the upper ranks of the department were composed of blacks. This use of numerical quotas was challenged. The Supreme Court, however, upheld the use of strict quotas in this case as one of the only means of combating the department's overt and defiant racism.

Jan. 23, 1989

City of Richmond v. Croson

This case involved affirmative action programs at the state and local levels—a Richmond program setting aside 30% of city construction funds for black-owned firms was challenged. For the first time, affirmative action was judged as a "highly suspect tool." The Supreme Court ruled that an "amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota." It maintained that affirmative action must be subject to "strict scrutiny" and is unconstitutional unless racial discrimination can be proven to be "widespread throughout a particular industry." The Court maintained that "the purpose of strict scrutiny is to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen `fit' this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype."

June 12, 1995

Adarand Constructors, Inc. v. Peña

What Croson was to state- and local-run affirmative action programs, Adarand was to federal programs. The Court again called for "strict scrutiny" in determining whether discrimination existed before implementing a federal affirmative action program. "Strict scrutiny" meant that affirmative action programs fulfilled a "compelling governmental interest," and were "narrowly tailored" to fit the particular situation. Although two of the judges (Scalia and Thomas) felt that there should be a complete ban on affirmative action, the majority of judges asserted that "the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country" justified the use of race-based remedial measures in certain circumstances.

July 19, 1995

White House guidelines on affirmative action

President Clinton asserted in a speech that while Adarand set "stricter standards to mandate reform of affirmative action, it actually reaffirmed the need for affirmative action and reaffirmed the continuing existence of systematic discrimination in the United States." In a White House memorandum on the same day, he called for the elimination of any program that "(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved."

March 18, 1996

Hopwood v. University of Texas Law School

Cheryl Hopwood and three other white law-school applicants at the University of Texas challenged the school's affirmative action program, asserting that they were rejected because of unfair preferences toward less qualified minority applicants. As a result, the 5th U.S. Court of Appeals suspended the university's affirmative action admissions program and ruled that the 1978 Bakke decision was invalid—while Bakke rejected racial quotas it maintained that race could serve as a factor in admissions. In addition to remedying past discrimination, Bakke maintained that the inclusion of minority students would create a diverse student body, and that was beneficial to the educational environment as a whole. Hopwood, however, rejected the legitimacy of diversity as a goal, asserting that "educational diversity is not recognized as a compelling state interest." The Supreme Court allowed the ruling to stand. In 1997, the Texas Attorney General announced that all "Texas public universities [should] employ race-neutral criteria."

Note: The June 23, 2003, Supreme Court ruling in Grutter v. Bollinger invalidates Hopwood.

Nov. 3, 1997

Proposition 209 enacted in California

A state ban on all forms of affirmative action was passed in California: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Proposed in 1996, the controversial ban had been delayed in the courts for almost a year before it went into effect.

Dec. 3, 1998

Initiative 200 enacted in Washington State

Washington becomes the second state to abolish state affirmative action measures when it passed "I 200," which is similar to California's Proposition 209.

Feb. 22, 2000

Florida bans race as factor in college admissions.

Florida legislature approves education component of Gov. Jeb Bush's "One Florida" initiative, aimed at ending affirmative action in the state.

Dec. 13, 2000

University of Michigan’s undergrad affirmative action policy

In Gratz v. Bollinger, a federal judge ruled that the use of race as a factor in admissions at the University of Michigan was constitutional. The gist of the university's argument was as follows: just as preference is granted to children of alumni, scholarship athletes, and others groups for reasons deemed beneficial to the university, so too does the affirmative action program serve "a compelling interest" by providing educational benefits derived from a diverse student body.

March 27, 2001

Univ. of Michigan Law School's affirmative action policy

In Grutter v. Bollinger, a case similar to the University of Michigan undergraduate lawsuit, a different judge drew an opposite conclusion, invalidating the law school's policy and ruling that "intellectual diversity bears no obvious or necessary relationship to racial diversity." But on May 14, 2002, the decision was reversed on appeal, ruling that the admissions policy was, in fact, constitutional.

June 23, 2003

Supreme Court Upholds Affirmative Action in University Admissions

In the most important affirmative action decision since the 1978 Bakke case, the Supreme Court (5-4) upholds the University of Michigan Law School's policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers "a compelling interest in obtaining the educational benefits that flow from a diverse student body." The Supreme Court, however, ruled (6-3) that the more formulaic approach of the University of Michigan's undergraduate admissions program, which uses a point system that rates students and awards additional points to minorities, had to be modified. The undergraduate program, unlike the law school's, does not provide the "individualized consideration" of applicants deemed necessary in previous Supreme Court decisions on affirmative action.

See Grutter v. Bollinger.



November 9, 2006

Michigan Votes to Ban Affirmative Action

Michigan voters approved a state-wide ban on affirmative action in public education, public employment, and state contracts on Tuesday. The referendum was opposed by many prominent leaders in the political, business, and academic worlds, including both major gubernatorial candidates, Governor Jennifer Granholm (D) – who was reelected on Tuesday – and Dick DeVos (R). Detroit and the surrounding metro area also showed strong opposition to the referendum, as evidenced by the ubiquitous "No on 2" signs. Roughly 58 percent of voters across the state, however, came out in favor of the ban. Proposition Two garnered the most support from men and white voters, with 60 percent and 59 percent voting to approve it, respectively. Only 47 percent of women and 14 percent of black voters cast a "yes" ballot for the proposition, according to exit polls, Inside Higher Ed reports.

The ban has been controversial from the beginning. Ward Connerly, an African-American businessman, pushed through a similar ban on affirmative action in California during the 1996 election. He created an anti-affirmative action organization with the same name as the bill on Michigan’s ballot – the Michigan Civil Rights Initiative – with Jennifer Gratz. Gratz filed suit against the University of Michigan Law School in 2003 when she was reportedly denied admission.

In order to put Proposition Two on the ballot, the Michigan Civil Rights Initiative (MCRI) paid workers two dollars for every signature they obtained. According to Kate Nielson, a campus organizer for the Feminist Majority Foundation who spent much of the past two months working in the field, the MCRI used other deceptive means to get the referendum on the ballot. One black, female Wayne State University student working for the MCRI to collect signatures was told that the referendum was to cut taxes.

The consequences of the approval of Proposition Two will be far reaching in Michigan and beyond. Changes are set to start as early as December 22, but legal challenges are expected. The passage of Proposition Two will not only affect Michigan citizens; with his success in Michigan, Connerly is expected to take the same ban to other states. Ohio is the next suspected target. Opponents of these bans plan to mobilize their base early in an attempt to keep similar referenda off of future ballots.