MICHIGAN CASES REDUX

Eugene Volohk provides a link to Rehnquist’s dissent in Grutter v. Bollinger and several brief posts on the subject. Start here and read your way up.

As is almost invariably the case, the dissent is more interesting reading than the majority opinion, because the author is bitter and freer to be sardonic. He shreds O’Connor’s bending of strict scrutiny precedent; points out that Michigan’s policy doesn’t actually achieve the “critical mass” of minority students it flouts the Constitution to achieve; notes that Michigan treats even the minority groups it seeks to discriminate in favor of differently from one another; and observes that there are no goals and timetables set forth in the policy so that one might know when they may be dismantled.

This passage is also quite damning:

The school asserts that it “frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected.” Specifically, the Law School states that “[s]ixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admissions Test (LSAT)]” while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted.

Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159—160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id., at 198. Likewise, that same year, 16 Hispanics who scored between a 151—153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id., at 200—201. Twenty-three similarly qualified African-Americans applied for admission and 14 were admitted.

Clarence Thomas wrote a separate dissent, in which he was joined by Antonin Scalia. As usual, Thomas is eloquent on racial issues. He begins with a quotation from Frederick Douglass:

“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.”

And this passage is simply withering:

No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court’s opinion. First, I agree with the Court insofar as its decision, which approves of only one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 31 (stating that racial discrimination will no longer be narrowly tailored, or “necessary to further” a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court’s opinion and the judgment, however, because I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months [emphasis mine].

In addition to the fact that the dissents are make more enjoyable reading than the majority opinion, I’m also struck by how much more the former rely on citation of the Constitution and case law precedent. The Majority rely on an unproven assumption that diversity is a compelling state interest, presume that Michigan’s policy is the only way to achieve said interest, and ignore the usual tests for applying strict scrutiny.

(Citation information in all quotations redacted for clarity.)

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.