# Barbara Grutter v. Lee Bollinger, (01-1447), Kimberly James, Intervening (01-1516)

> Court of Appeals for the Sixth Circuit · May 14, 2002 · 288 F.3d 732

URL: https://www.frixlaw.com/law-library/cases/9494962

## Case

- **Full name:** Barbara GRUTTER, Plaintiff-Appellee, v. Lee BOLLINGER, Et Al., Defendants-Appellants (01-1447), Kimberly James, Et Al., Intervening Defendants-Appellants (01-1516)
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 14, 2002
- **Citations:** 288 F.3d 732; 2002 U.S. App. LEXIS 9126; 2002 WL 976468
- **Precedential status:** Published
- **Opinion:** Dissent by Gilman
- **Judges:** Martin, Boggs, Siler, Batchelder, Daughtrey, Moore, Cole, Clay, Gilman
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494962

## How later opinions describe it (automated extraction)

- stating that a Marks holding “must necessarily produce results with which a majority of the Court from that case would agree.” (internal quotation marks omitted)
- holding that “arising under” jurisdiction exists where one invokes a substantive right created by federal bankruptcy law

## Opinion text

GILMAN, Circuit Judge,
dissenting.
Both the majority opinion and Judge Boggs’s dissent address the two key issues in this case: (1) whether diversity in high *816 er education, including racial and ethnic diversity, is a compelling government interest, and (2) whether the University of Michigan Law School’s admissions policy is narrowly tailored to further that goal. There is much to be said for each viewpoint, but there are aspects of both opinions with which I do not agree. The majority opinion, in particular, reaches whát I believe to be an erroneous conclusion regarding the narrow-tailoring challenge to the Law School’s admissions policy. Judge Boggs’s dissent, on the other hand, includes arguments in support of his position that the Law School’s admissions policy is not narrowly tailored that I find troublesome. Specifically, I am unpersuaded by his critique that no empirical link exists between a critical mass of minority students and the perceived educational benefits or his belief that race-neutral factors would be more likely to achieve the desired diversity of experience than reliance on an applicant’s race. I therefore feel compelled to write a separate dissenting opinion.
The facts of the present case, in my opinion, eliminate the need to decide whether or not this court is bound by Justice Powell’s conclusion in Regents of the University of California v. Bakke, 438 U.S. 265 , 98 S.Ct. 2783 , 57 L.Ed.2d 750 (1978), that educational diversity is a compelling government interest. Indeed, the principled disagreement between the majority opinion and Judge Boggs’s dissent as to the proper resolution of this issue underscores the confusion created by the various opinions in Bakke. No one disputes, however, that Bakke stands for the proposition that an admissions policy designed to further the interest of educational diversity is not narrowly tailored if it creates a two-track system for evaluating prospective students, where minorities are effectively insulated from competition with other applicants. Id. at 319-20, 98 S.Ct. 2733 (holding that the University of California’s admissions system, which reserved a fixed number of places specifically for minority students, violated the Equal Protection Clause of the Fourteenth Amendment).
The Law School’s admissions policy, in my view, creates such an impermissible system. I therefore believe that this court should assume, without deciding, that educational diversity — as defined by Justice Powell in Bakke — is a compelling government interest. Lyng v. Northwest Indian Cemetery Prot. Ass’n, 485 U.S. 439, 445 , 108 S.Ct. 1319 , 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). Several of our sister circuits have taken a similar approach. Johnson v. Bd. of Regents of Univ. of Georgia, 263 F.3d 1234, 1251 (11th Cir.2001) (assuming that educational diversity is a compelling interest, but holding that the school’s admissions policy was not narrowly tailored); Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 , 705 (4th Cir.1999) (per curiam) (same); Wessmann v. Gittens, 160 F.3d 790, 796 (1st Cir.1998) (same).
The primary problem with the Law School’s admissions policy is that the “critical mass” of minority students that it seeks to enroll is functionally indistinguishable from a quota. Whether viewed as a percentage or as an absolute number, the consistency 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. See Judge Boggs’s discussion in Part II.B.2. of his dissent. The “critical mass” therefore appears to be a euphemism for the quota system that Bakke explicitly prohibits.
I believe that the Law School’s pursuit of a critical mass of minority students has *817 led to the creation of a two-track admissions system, not only in the sense that a minimum percentage of seats is set aside for under-represented minorities, but also because the Law School gives grossly disproportionate weight to race and ethnicity in order to achieve this critical mass. Judge Boggs’s discussion of the vastly divergent admissions rates for minority students as compared to all other applicants to the Law School, a divergence that cannot be ascribed to any factor other than their race or ethnicity, demonstrates this reality. In my view, Justice Powell’s opinion in Bakke unequivocally prohibits such a defacto dual admission system that applies one standard for minorities and another for all other students. Bakke, 438 U.S. at 317 , 98 S.Ct. 2733 (indicating approval of Harvard’s admissions plan, where “race or ethnic background may be deemed a ‘plus’ in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats”).
Moreover, like Judge Boggs, I believe that the record establishes that race-neutral factors are nowhere near as significant in determining admissions as whether the applicant is an under-represented minority. The Law School’s policy of achieving a critical mass of minority students without giving comparable consideration to other aspects of diversity is irreconcilable with Justice Powell’s explanation of why a quota system represents an impermissible use of race in the admissions process:
In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admission program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.
Id, at 315, 98 S.Ct. 2733 (Powell, J.) (emphasis omitted). In my view, this compels the conclusion that the Law School’s admissions policy is not narrowly tailored to serve the presumptively compelling government interest in a diverse student body. Simply put, an applicant’s race or ethnicity, even if not the only factor (other than LSAT scores and GPAs) that is taken into account, receives such grossly disproportionate weight as to violate the Equal Protection Clause.
The Law School, as the preceding discussion suggests, attempts to equate attaining a “critical mass” of minority students with the goal of achieving a diverse student body. But because the Law School’s goal of achieving a critical mass results in a two-track system that is functionally equivalent to a quota, its admissions policy is prohibited by Bakke. This is a quandry that admits of no easy solution.
Is there any way, then, that race or ethnicity can ever be taken into account in a narrowly tailored manner that would survive strict scrutiny? Surely the answer is “Yes.” For example, in differentiating between two applicants with essentially equal LSAT scores and GPAs, where one is Caucasian and the other African-American, I have little doubt that favoring the under-represented African-American applicant would pass constitutional muster if educational diversity is recognized as a compelling government interest. This would clearly fall within the scope of what I believe Justice Powell had in mind when *818 discussing the appropriate use of a “plus” for diversity in Bakke.
The problem, according to the Law School, is that limiting the conscious favoritism of minorities to situations where the factor is a “plus among equals” would not likely produce the critical mass that it earnestly believes is essential to achieve a truly diverse student body. On the other hand, such an admissions policy would presumably avoid the animosities stirred up by the common perception that admitted minority students are less qualified than their nonminority peers. See Bakke, 438 U.S. at 298 , 98 S.Ct. 2733 (Powell, J.) (“[Preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth.”) (citing DeFunis v. Odegaard, 416 U.S. 312, 343 , 94 S.Ct. 1704 , 40 L.Ed.2d 164 (1974) (Douglass, J., dissenting)).
But these competing considerations are matters that need not, and cannot, be resolved by the case before us. Based on the record presented, I am convinced that the Law School’s admissions policy that results in a de facto quota in favor of minority students is far closer to the rigid set-aside squarely prohibited by Bakke than it is to the “plus among equals” that I believe would be clearly constitutional. How close the Law School would have to come to the latter end of the spectrum in order for its admissions policy to survive the strict-scrutiny test should, in my opinion, await another day, a day when a more narrowly tailored policy is formulated and presented for resolution. In the meantime, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494962. Public record. Not legal advice.