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Gratz v. Bollinger, 539 U.S. 244 

Supreme Court of the United States






Equality and the Constitution




Heightened Scrutiny and the Problem of Race

Quick Notes

The university's undergraduate admissions policy was based on a point system that automatically granted 20 points to applicants from underrepresented minority groups.


The Court also found that the policy made race the decisive factor for virtually every minimally qualified underrepresented minority applicant. As the policy was not narrowly tailored to achieve respondents' asserted compelling interest in diversity, it violated the Equal Protection Clause, Title VI of the Civil Rights Act of 1964, and 42 U.S.C.S. 1981


Underrepresented are automatically given 20 points while Grutter was a plus factor

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0



o         Whether automatically granting 20 point to college applicants from underrepresented minority groups is a violation of the Equal Protection Clause?  Yes.




o         Upheld the admissions program.


o         Affirmed


o         Reversed




Key Phrases



Df -  Bollinger



o         Companion case to Grutter.

o         This case concerns the admissions process for the undergraduate of liberal arts and science at the University of Michigan.

Scale Ranking System

o         150 point system

o         100 Generally admitted.

o         75 Generally not admitted

o         110 pts Academic Performance

o         10 pts Michigan residents

o         4 pts Child of Alumni.

o         5 pts Personal achievement.

o         20 pts If underrepresented minority group.

Admissions Review Committee (ARC)

o         Some applicants were flagged for review.

Chief Justice Rehnquist


Does not conform to Powell's opinion

o         Rehnquist believed that the College's point system did not meet the requirements of Justice Powell's Bakke opinion.

o         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.


o         The challenged policy does NOT provide such individualized considerations.

o         The policy automatically distributes 20 points to every single applicant from an underrepresented minority group.


Flagging not a solution

o         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.

o         Flagging would only come into play if the student failed to get enough points to be automatic admitted.

o         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

o         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.

o         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

o         We receive more applications that the Law School.

o         It would be impractical for the College to use the plus system due to the shear volume of applications.


Rehnquist Administration challenges is not a constitutional challenge

o         "[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         O'Connor principally objected to the fact that far fewer points were available for diversity characteristics other than the race-oriented points.

o         High School leadership only receives 5 points, this is 25% of the 20 points assigned for being an underrepresented minority.

o         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

o         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"

o         Souter took a far narrower view of what constituted a forbidden quota than did the majority.


Insulated all non minority candidates

o         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.' "


Applicants Compete

o         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 points.

o         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 bonus."

o         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

o         Removal is still vital.

o         It is reasonable for Universities to seek to maintain their minority enrollment.

o         Without recourse to such plans, institutions of higher education may resort to camouflage.

o         The only difference between the undergraduate plan and law school is candor.





Class Notes