The Supreme Court: Unconstitutional Undergraduate Admissions Policy—Gratz v. Bollinger

Unconstitutional Undergraduate Admissions Policy—Gratz v. Bollinger

Now that you understand what type of affirmative action policy is constitutional, let's briefly review the type of policy that the court ruled unconstitutional. Starting in 1995, the undergraduate program used a point system in which an applicant could score up to 150 points. Applicants that scored 100 to 150 were admitted, 90 to 99 were admitted or postponed, 75 to 89 were delayed or postponed and 74 and below were delayed or rejected.

Points were based on high school grade point average, standardized test scores, academic quality of an applicant's high school, strength or weakness of high school curriculum, in-state residency, alumni relationship, personal essay, and personal achievement or leadership. There was also a miscellaneous category that gave an applicant 20 points based upon membership in an underrepresented racial or ethnic minority group.

The university added one more layer to the process in 1999. Any applicant from an under-represented racial or ethic minority group that was awarded 20 points was flagged for additional review by an Admissions Review Committee (ARC) if the applicant proved to be academically able to succeed, had achieved a minimum selection index and possessed a quality or characteristic important to the University's composition of its freshman class. These included variables such as high class rank, unique life experiences, challenges, circumstances, interests or talents, socioeconomic disadvantage, and under-represented race, ethnicity, or geography. After reviewing “flagged” applications, the ARC determined whether to admit, defer, or deny each applicant.

The Supreme Court found that because the freshman admissions policy is not narrowly tailored to achieve diversity, it violates the equal protection clause. By automatically distributing 20 points, or one-fifth of the points needed to guarantee admission to every single “underrepresented minority” applicant just because of race, does not narrowly tailor the affirmative action policy to achieve educational diversity. This method does not provide individualized consideration as does the law school admissions policy, which the court upheld. The only consideration for the 20-point automatic distribution is the fact that the applicant is from an under-represented minority. The 20-point distribution has the effect of making “the factor of race … decisive” for virtually every minimally qualified under-represented minority applicant.

The additional flagging for individualized consideration, added in 1999, did not correct the problem, but instead emphasized the flaws of the University's system, the Court ruled. This individualized review is provided only after the points are automatically distributed, so it does not change the fact that the points “plus” are a decisive factor for virtually every minimally qualified under-represented minority applicant. The University claimed the volume of applications made it impractical for the type of individual review found constitutional under Grutter. The Court said the fact that an individualized review raised administrative challenges does not make the points system constitutional.

Chief Justice Rehnquist wrote the opinion for the 6 to 3 majority ruling and was joined by Justices Kennedy, O'Connor, Scalia, and Thomas. Justice Breyer concurred with Rehnquist in a separate opinion and also joined O'Connor in a concurring opinion that she wrote. Justice Stevens wrote a dissenting opinion and was joined by Justice Souter. Souter also wrote a dissenting opinion and was joined in part by Justice Ginsburg. Justice Ginsburg wrote another dissenting opinion, which was joined by Souter and Breyer in part.

Now let's move onto other forms of discrimination based on disability or age.