Women and Employment, B&G 3rd ed. 139-142; 4th edition, p. 221

The Supreme Court reconsidered affirmative action in 2003 in a pair of cases arising from admissions policies at the University of Michigan. In Grutter v. Bollinger the Court upheld the University of Michigan Law School’s use of race, along with other factors, in attempting to obtain a diverse educational environment. Justice Sandra Day O’Connor, speaking for a 5 to 4 majority, endorsed the diversity rationale first set forth by Justice Powell in Bakke. She concluded that “the Equal Protection Clause does not prohibit the 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.” In reaching this result Justice O’Connor stressed that “universities occupy a special niche in our constitutional tradition” adopted a deferential approach to the academic decisions of universities. She also maintained that fixed racial quotas would be unconstitutional and pointed out that “”racial classifications, however compelling their goals, are potentially so dangerous;” that race-conscious admissions policies must be limited in duration. O’Connor expressed the hope that racial preferences would no longer be necessary in twenty-five years. The four dissenting justices charged that the ostensibly flexible admissions program was in practice a carefully managed scheme to admit less qualified applicants from selected minority groups in violation of the equal protection clause.

 In the companion case of Gratz v. Bollinger the Supreme Court placed some limits on the use of affirmative action in education. The justices, by a vote of 6 to 3, struck down the University of Michigan’s use of racial preferences in undergraduate admissions.  At issue was a policy under which a number of points were automatically added to the selection index of every applicant from an “underrepresented” racial or ethnic minority group. Writing for the majority. Chief Justice Rehnquist ruled that such a blanket racial preference was “not narrowly tailored” to achieve the asserted interest in diversity and thus ran afoul of the equal protection clause.

 The two Michigan decisions appear to allow universities to give weight to an applicant’s membership in a racial minority in the context of an individualized admissions determination, but not as part of arbitrary formulas or quotas. Yet these rulings are unlikely to halt the controversy over affirmative action in higher education. Further litigation is almost a certainty. Among the unresolved issues are which racial or ethnic groups qualify for affirmative action in the name of diversity and the status of minority-only scholarships and campus housing. [Hall, Finkleman and Ely, 2005]