Chief Justice Rehnquist
Does not conform to Powell's opinion
Rehnquist believed that the College's point system did not meet
the requirements of Justice Powell's Bakke opinion.
The essence of Powell's approach was that race could be deemed a
"plus," but was not to be "decisive"; each applicant was to be
evaluated as an individual, and each characteristic of that
applicant was to be considered.
The challenged policy does NOT provide such individualized
The policy automatically distributes 20 points to every single
applicant from an underrepresented minority group.
Flagging not a solution
The fact that an applicant who failed to get the requisite
points but came close could have her application flagged for
special individualized review
did not remedy these flaws.
Flagging would only come into play if the student failed to get
enough points to be automatic admitted.
Because the 20 points for minority racial status virtually
guaranteed admission to minimally-qualified minorities, such
minorities would never be
near-misses, would therefore never be flagged, and thus never
subjected to individualized review.
Making the factor of race decisive
Moreover, unlike Justice Powell's example, where the race of a
"particular black applicant" could be considered without being
decisive, see id., at 317, 57 L Ed 2d 750, 98 S Ct 2733.
The universitys 20-point distribution has the effect of making
"the factor of race . . . decisive" for virtually every
minimally qualified underrepresented minority applicant.
Universitys Arg Large Numbers Defense
We receive more applications that the Law School.
It would be impractical for the College to use the plus system
due to the shear volume of applications.
Administration challenges is not a constitutional challenge
"[T]he fact that the implementation of a program capable of
providing individualized consideration might present
administrative challenges does not render constitutional an
otherwise problematic system."
Concurring Justice OConnor
Other variables are capped at much lower levels
O'Connor principally objected
to the fact that far fewer points were available for diversity
characteristics other than the race-oriented points.
High School leadership only receives 5 points, this is 25% of
the 20 points assigned for being an underrepresented minority.
By setting up automatic, predetermined point allocations for the
soft variables, ensures that the diversity contributions of
applicants CANNOT be assessed.
Sharp Contrast to Law Schools Plan
This was in "sharp contrast" to the Law School's plan, under
which admissions officers were able to "make nuanced judgments
with respect to the contributions each applicant is likely to
make to diversity of the incoming class."
Dissent Justice Souter
Narrow view of "quota"
Souter took a far narrower view of what constituted a forbidden
quota than did the majority.
Insulated all non minority candidates
The sort of quota condemned by Powell, he said, was one "which
'insulated' all non minority candidates from the competition for
certain seats" and "effectively told nonminority applicants that
[quoting Bakke] 'no matter how strong their qualifications ...
they are never afforded the
chance to compete with applicants from the preferred groups for
the [set-aside] special admission seats.' "
The College's plan here, by contrast, "lets all applicants
compete for all places," and "values an applicant's offering for
any place not only on grounds of race, but on grades, test
scores, strength of high-school," etc.
Non-Minority with a high score could exceed a minority with 20
Therefore, a nonminority applicant who scored high in several of
these other categories could "readily gamer a selection index
exceeding that of a minority applicant who gets the 20-point
Furthermore, there were a few non-race-oriented characteristics
(e.g., athletic ability, or socio-economic disadvantage) that
could yield the same 20 points as membership in an
underrepresented minority group.
Dissent Justice Ginsburg
Stain of Generations of Racial Oppression is still visible
Removal is still vital.
It is reasonable for Universities to seek to maintain their
Without recourse to such plans, institutions of higher education
may resort to camouflage.
The only difference between the undergraduate plan and law
school is candor.