Ginsburg Dissent: Gratz v. Bollinger Case Summary

This week the Law Library tasked law student Andy Kiyuna with summarizing a dissent by Justice Ginsburg.  In her dissent concerning the University of Michigan’s affirmative action admissions policy in Gratz v. Bollinger, Justice Ginsburg relied upon a 1998 journal article authored by Professor Linda Hamilton Krieger.  Professor Krieger’s article titled, Civil Rights Perestroika: Intergroup Relations After Affirmative Action is found at 86 Cal. L. Rev. 1251.

Gratz v. Bollinger, 539 U.S. 244 (2003)

Jennifer Gratz and Patrick Hamacher applied for admission to the University of Michigan’s College of Literature, Science, and the Arts (LSA) in 1995 and 1997, respectively. Both applicants were Caucasian residents of Michigan, both were told that final decisions on their applications were to be delayed, and both applicants were eventually denied. What differentiated Gratz and Hamacher from the rest of the students denied admission to LSA was the lawyers they hired and the certified class action against the University.

Under the admission policy during 1995 to 1998, the University admitted nearly every qualified “underrepresented minority” applicant. The policy scored students higher for admission for students who were underrepresented minorities, socioeconomically disadvantaged, attended a high school with a predominantly underrepresented minority population, or underrepresented in the unit the student is applying to. Starting in 1998, the University shifted its policy to a point system where 20 points were automatically awarded if a student was a member of an underrepresented minority group, attended a predominantly minority or disadvantaged high school, or was recruited for athletics. Under the new system, all students who scored over 100 under the admission policy were automatically admitted.

The question raised before the Supreme Court was whether the University’s use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. With a 6-3 majority, the Court answered yes. Since the policy automatically awarded 20 points rather than provide individual consideration for underrepresented minorities, the court found that the admission policy was not narrowly tailored to achieve the University’s asserted interest in diversity, thus violating the Equal Protection Clause.

In her dissent, Justice Ginsburg argued that since the admission policy does not seek to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race, that the University did not violate the Equal Protection Clause. Ginsberg points out that race is not simply an impermissible classification, but that our Constitution is both “color blind” and “color conscious” on the subject. It is also worth noting that Professor Linda Hamilton Krieger[1] is cited twice in Ginsberg’s dissent, fueling the Justice’s arguments that “the stain of generations of racial oppression is still visible in our society… and the determination to hasten its removal is vital.”

[1] Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Cal. L. Rev. 1251 (1998).

CourtListener: Free Legal Research

CourtListener landing page

CourtListener is an open source aggregator of court opinions. It is a subproject of the Free Law Project.

From their site:

“We collect legal opinions from court websites and from data donations, and are aiming to have the best, most complete data on the open Web within the next couple years. We are slowly expanding to provide search and awareness tools for as many state courts as possible, and we already have tools for all of the Federal Appeals Courts.”

Some key differences of this new site include RECAP documents, oral arguments, Judge analysis, and data-rich visualizations.

The RECAP Archive is a searchable collection of PACER documents and dockets that were gathered using the RECAP Extensions for Firefox and Chrome.

The site collects oral argument audio from the Supreme Court and all of the Federal Circuit courts that provide it. State oral arguments are slowly being added.

The judges database has information about thousands of judges from federal and state courts, including their biographical and educational background, judicial and non-judicial positions held, political affiliations, American Bar Association ratings, campaign finance data, and opinions authored.

The site hosts a powerful advanced search that allows one to mine the database from many fields.

United States v. Virginia Case Summary

The following case brief was prepared by Brandon Singleton for this blog in anticipation of Justice Ginsburg’s visit in February.  United States v. Virginia was a seminal case about gender-based classifications at Virginia Military Institute.  Writing for the majority, Justice Ginsburg used the Equal Protection Clause of the Fourteenth Amendment to cause the institution to admit 30 women in the fall of 1997.  You can read a news article from the Washington Post about this first co-ed class.

Next week we will focus on a dissent that Justice Ginsburg wrote.  See a picture of the collar Justice Ginsburg wears when she has a dissent in the Law Library display (“The Notorious RBG”) on Justice Ginsburg in the lobby.

United States v. Virginia, 518 U.S. 515 (1996)


The Virginia Military Institute (VMI) was established in 1839 as one of America’s first state military colleges, funded by the Commonwealth of Virginia. Its mission is to produce “citizen-soldiers, men prepared for civilian life and military service.” It accomplished that mission through extreme adversity. New cadets were known as “rats,” and, for approximately 7 months, underwent a trial known as the “rat line,” where they were exposed to physical and mental stress. To quote the Commandant of Cadets, Col. Bissell, [the rat line], “‘dissects the young student,’ and makes him aware of … ‘how far he can go with his anger, … how much he can take under stress, … what he can do when he is physically exhausted.’”

In 1990, VMI’s single-sex policy was finally challenged when a female high-school student, seeking admission to VMI, filed a complaint with the Attorney General. She alleged that VMI’s exclusively male admission policy violated the Equal Protection Clause of the 14th Amendment. She was one of 347 women who had sent inquiries to VMI, none had received responses.

Virginia argued that VMI’s “adversative” method of training was inherently unsuitable for women. It argued that, not only did single-sex education yield important educational benefits, but those benefits could not be made available to women without alterations that would necessarily destroy VMI’s program.

The Federal District Court ruled in favor of VMI, holding that a single-gender environment yields substantial educational benefits. But the 4th Circuit Court of Appeals disagreed. The appellate court found that the Commonwealth failed to show that VMI’s admissions policy advanced any state policy. Moreover, it was contrary to the state’s announced commitment to non-discrimination and diversity in education. As a remedial measure, Virginia proposed the creation of a parallel women’s program, called the Virginia Women’s Institute of Leadership (VWIL). The 4th Circuit accepted that proposal, calling it “substantively comparable.” In response, the Attorney General appealed the case to the Supreme Court.


Virginia’s petition for separate male and female military schools raised two main issues: 1) whether Virginia’s exclusion of qualified women from VMI denied them equal protection under the 14th Amendment, and 2) if yes, what remedy was required?


In a 7 to 1 decision, the Court held that VMI’s male-only admissions policy violated the Equal Protection Clause of the 14th Amendment. Justice Ginsburg, writing for the majority, drew a clear rule: under equal protection analysis, parties seeking to defend gender-based government action must demonstrate “exceedingly persuasive justification” for the action. Here, Virginia failed to meet that standard.

First, Virginia failed to show that the male-only admissions policy advanced a state policy. In fact, the policy was per-se counter to Virginia’s stated commitment to furthering diversity in education.

Furthermore, Virginia’s proposed remedy, the creation of a separate women’s institute, VWIL, was insufficient because it could not offer the same benefits to women that VMI offered to men. VWIL would not provide the same rigorous military training, academics, or alumni involvement that VMI provided. VWIL would not require students to wear uniforms, eat together, or participate in any activities typical of a military format. For these reasons, the 4th Circuit’s finding that VWIL and VMI were “substantively comparable” was misplaced, and the standard inconsistent with precedent. The appropriate remedy was to admit qualified women to VMI. Here, Justice Ginsburg plainly stated the appropriate standard: all gender-based classifications must be evaluated with “heightened scrutiny.” Borrowing from the ideas of constitutional historian, Richard Morris, Justice Ginsburg wrote that, “a prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Here, “there is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’”

Freedom of Information Acts: A double-edged sword in a time of emotional and political unrest

In the legal academy, a petition was circulated among law professors last month that opposed the appointment of Jeff Sessions nomination to be our next attorney general.  There were nearly 1500 signatures.  The petition and its signatories are found here:

This month, a reporter working for a conservative political publication relied on the Open Records Act to obtain “a copy of each email (inbound, outbound, deleted, or double deleted) for the university email accounts of Professor Andrea A. Curcio at the University of Georgia and [a colleague who also signed the letter] from the dates of December 15, 2016, to and including January 3, 2017, which includes any of the keywords “Sessions,” or “Jeff Sessions” or “Attorney General.” According the press accounts, similar requests was received by university counsel for law professor signatories working at other public institutions.

The publication is relying on the state versions, what is commonly referred to as open records laws.  Some states label them open information laws or public information acts.  In Hawaii, our version is codified at Haw. Rev. Stat. 92F.  Regardless of what the popular name of the law is, the concept is the same:  public employees are subject to the same open records laws as every other public employee in his state or open information laws that make emails and other written documentation of agencies and individuals who work for those agencies subject to public inspection.

Mindfulness Practice Resumes in Spring 2017

man meditating in fieldMindfulness practice (aka meditation) has many benefits. I attended a conference presentation last summer focused on being present and learning what other law schools and lawyers were doing to promote mindfulness into their academics and private practice.

The presentation had a useful handout giving simple beginner’s advice, list of resources, and bios on the speakers.

Below are takeaways from this presentation:

  • Kyle Courtney from Harvard noted libraries are great spaces for mindfulness and meditation. Meditation represents another point of service for the library. I have conducted weekly mindfulness sittings at the law library but I may consider a week-long session (if there is interest). Harvard holds retreats over the winter term. Some law schools adopt mindfulness into the curriculum offering credited study.
  • Jessica Fayerman, a solo practitioner in Chicago, is a member of a Chicago bar mindfulness group. She acknowledged that meditation is a great stress relief for attorneys, and it helps remind us our work is not just about us (it’s just not our personal battles). Through meditation we encompass a wider space and learn the difference between reacting and responding. Mindfulness encourages collaborative leadership.
  • Rev. Eitaro Hayashi of Shinnyo-en, a US Buddhist Order, advised us to be present and learn to do one thing at a time (avoid multitasking).
  • During the Q&A portion I learned about a law professor who lead one class with a short breathing exercise and found that it encouraged better discussion and listening. I tried this technique in one of my classes and found the students less restive and more focused.

I will resume weekly mediation sessions in January. Everyone is invited (students, faculty, and staff). I will provide an introductory period for anyone who is new. Just let me know you need some training when you arrive (or tell me in the comments section below).

Here are the details for the weekly (starting January 26) meditation sessions: Thursdays at 12 noon in room 118 of the law library. Come as you are. Drop-in or leave as needed. Each session will last approximately 20 minutes, so you should still have time to get lunch.

If you are interested in more details about mindfulness or our weekly meditations, use this contact form: