The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Circuit Court Says Diversity is Compelling Interest

Feature Story by Katie Drake - 5/20/2002

In a landmark decision, the United States Court of Appeals for the Sixth Circuit upheld the constitutionality of the use of race as a factor for admission to the University of Michigan Law School. This decision, in Grutter v. Bollinger, sets a strong precedent for supporters of affirmative action and other programs that aim to promote equal opportunity and increase diversity in higher education.

The court's opinion in Grutter overturned the ruling by a federal district court in Michigan that the admissions policy used by the law school impermissibly discriminated against White applicants. In upholding the Michigan admissions scheme, the majority noted that they were "satisfied that the law school's admissions policy sets appropriate limits on the competitive consideration of race and ethnicity."

The key holdings in the court's opinion are that educational diversity can be a compelling state interest that justifies the use of race as a factor in university admissions and that the University of Michigan Law School plan used race in a way that was narrowly tailored to meet that interest, affirming conditions imposed by the Supreme Court's 1978 opinion in the Regents of the University of California v. Bakke.

The plaintiffs in Grutter argued that the law school's affirmative action policy discriminated against White applicants by treating an applicant's race or ethnicity as a "plus factor" in the admissions process when there are candidates who have similar undergraduate GPAs and standardized test scores. They argued that since educational diversity is not a "compelling interest" the university could not use race as any kind of factor to achieve their diversity goals. The plaintiffs also argued that even if diversity could be considered a compelling interest, the Michigan program was not narrowly tailored, as required by the Supreme Court's equal protection jurisprudence.

The university, relying on Bakke, argued that their desire to achieve "educational diversity" was a compelling state interest and that their program was narrowly tailored to meet that interest.

Though the Supreme Court established the principle that diversity can be a compelling state interest more than 20 years ago in Bakke, several recent decisions by lower federal courts have encouraged some to question the continued validity of the Bakke decision.

In 1996 in Hopwood v. State of Texas, the 5th Circuit held, contrary to Bakke, that race can only be used to remedy past discrimination and cannot be used as a factor to promote the goal of educational diversity. Thus, they held that the affirmative action plan utilized by the University of Texas was unconstitutional. The university petitioned for certiorari, but the Supreme Court declined to hear the case, allowing the ruling to stand. However, in Smith v. University of Washington, the 9th Circuit held that the use of race in admissions to achieve an "intellectually diverse student body" was constitutional. The plaintiffs petitioned the Supreme Court for certiorari, but the Court again denied review.

The University of Michigan has received major support in its litigation from the Michigan community, including local parents, students and companies such as General Motors Corporation. In addition, twenty Fortune 500 companies submitted amicus briefs to the court in support of the University of Michigan, citing the multiple benefits of diversity in education and the workplace.

The 6th Circuit's ruling in Grutter is likely not the end of the University's fight to preserve diversity and educational opportunity at Michigan. The companion case challenging the affirmative action program at the University's Undergraduate School, Gratz v. Bollinger, is currently pending before the 6th Circuit. Many predict that one or both of these cases will eventually find their way to the Supreme Court. If so, the Court will again have the opportunity to rule on the legality of affirmative action programs in the context of higher education.

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