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).
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Being cited in a dissent is sweet, but being in a case-winning concurrence is sweeter…
It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest **2348 values and ideals. See, e.g., Gratz v. Bollinger, post, 539 U.S., at 298–301, 123 S.Ct. 2411, 2003 WL 21434002 (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 272–274, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (Ginsburg, J., dissenting); Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L.Rev. 1251, 1276–1291, 1303 (1998).
Grutter v. Bollinger, 539 U.S. 306, 345, 123 S. Ct. 2325, 2347–48, 156 L. Ed. 2d 304 (2003)