Affirmative Action, Grutter v. Bollinger

[A18]

Grutter v. Bollinger, 539 U.S. 306 (2003)

Held: The University of Michigan Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI of the 1964 Civil Rights Act, or 42 U. S. C. §1981.

JUDGES: O'Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of Thomas, J. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined as to Parts I-VII. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion.

[Emsworth]

The University of Michigan attempted to disguise its affirmative action program as a program to promote diversity. Essentially, the University was applying one set of standards to applicants of one race, but a different set of standards to applicants of another race. Surely, this involves a denial of "equal protection of the laws." The very core of the equal protection clause is the principle that the state cannot treat people differently on account of race.

The majority in this case sustained this program after applying "strict scrutiny," a test that has been invented by the judiciary and is found nowhere in the Constitution. Under this test, racial discrimination is unconstitutional unless it advances a "compelling state interest." Supposedly, promoting racial diversity is so important, so "compelling," that affirmative action must be constitutional. This approach, however, is deeply flawed. Firstly, the equal protection clause does not contain a "compelling state interest" exception; all racially discriminatory laws are unconstitutional, regardless of the interests they advance. Secondly, the compelling interest standard is not really a standard of judicial review, but a standard of political review. What differentiates a "compelling" interest from a "non-compelling" one? Only the personal opinion of a judge.

Sandra Day O'Connor even had the audacity to suggest that, "25 years from now," affirmative action will no longer be necessary to further a "compelling state interest." In other words, O'Connor proposes that the meaning of the Constitution will mystically change after 300 months. I find it difficult to fathom why so many consider her a model justice.

Unsound.

[A18]

The compelling interest test is completely subjective, and I'd like to hear someone defend it. I think it can be traced back to Sherbert v. Verner (1963).

It really is absurd how the Court has managed to turn phrases like "no law" into "no law unless a compelling state interest is involved."