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JENNIFER GRATZ and PATRICK HAMACHER,
PETITIONERS v. LEE BOLLINGER et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 23, 2003]
Justice Souter, with whom Justice Ginsburg joins as to Part II, dissenting.
I agree with Justice Stevens that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm. I write separately to note that even the Court’s new gloss on the law of standing should not permit it to reach the issue it decides today. And because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court’s judgment.
I
The Court’s finding of Article III standing rests on two propositions: first, that both the University of Michigan’s undergraduate college’s transfer policy and its freshman admissions policy seek to achieve student body diversity through the “use of race,” ante, at 12—20, and second, that Hamacher has standing to challenge the transfer policy on the grounds that diversity can never be a “compelling state interest” justifying the use of race in any admissions decision, freshman or transfer, ante, at 18. The Court concludes that, because Hamacher’s argument, if successful, would seal the fate of both policies, his standing to challenge the transfer policy also allows him to attack the freshman admissions policy. Ante, at 18, n. 16 (“[P]etitioners challenged any use of race by the University to promote diversity, including through the transfer policy”); ibid. (“
tiff cannot challenge a government program that does
not apply to him. See ante, at 6, and n. 6 (dissenting opinion).1
But even on the Court’s indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 20 (citing Grutter v. Bollinger, post, at 15—21). Since, as the Court says, “petitioners did not raise a narrow tailoring challenge to the transfer policy,” ante, at 18, n. 16, our decision in Grutter is fatal to Hamacher’s sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher’s challenge to that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.2
II
The cases now contain two pointers toward the line between the valid and the unconstitutional in race-conscious admissions schemes. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, at least where race is not assigned a preordained value in all cases. On the other hand, Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class. Although the freshman admissions system here is subject to argument on the merits, I think it is closer to what Grutter approves than to what Bakke condemns, and should not be held unconstitutional on the current record.
The record does not describe a system with a quota like the one struck down in Bakke, which “insulate[d]” all nonminority candidates from competition from certain seats. Bakke, supra, at 317 (opinion of Powell, J.); see also Richmond v. J. A. Croson Co., 488 U.S. 469, 496 (1989) (plurality opinion) (stating that Bakke invalidated “a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities”). The Bakke plan “focused solely on ethnic diversity” and effectively told nonminority applicants that “[n]o matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the [set-aside] special admissions seats.” Bakke, supra, at 315, 319 (opinion of Powell, J.) (emphasis in original).
The plan here, in contrast, lets all applicants compete for all places and values an applicant’s offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of study, residence, alumni relationships, leadership, personal character, socioeconomic disadvantage, athletic ability, and quality of a personal essay. Ante, at 6. A nonminority applicant who scores highly in these other categories can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus. Cf. Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 638 (1987) (upholding a program in which gender “was but one of numerous factors [taken] into account in arriving at [a] decision” because “[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants” (emphasis deleted)).
Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be filled fits Justice Powell’s description of a constitutionally acceptable program: one that considers “all pertinent elements of diversity in light of the particular qualifications of each applicant” and places each element “on the same footing for consideration, although not necessarily according them the same weight.” Bakke, supra, at 317. In the Court’s own words, “each characteristic of a particular applicant [is] considered in assessing the applicant’s entire application.” Ante, at 23. An unsuccessful nonminority applicant cannot complain that he was rejected “simply because he was not the right color”; an applicant who is rejected because “his combined qualifications … did not outweigh those of the other applicant” has been given an opportunity to compete with all other applicants. Bakke, supra, at 318 (opinion of Powell, J.).
The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically disadvantaged or predominantly minority high school, or at the Provost’s discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on.
The Court nonetheless finds fault with a scheme that “automatically” distributes 20 points to minority applicants because “[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups.” Ante, at 23. The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken.
The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its “holistic review,” Grutter, post, at 25; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.
Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Bakke. Of course we can conceive of a point system in which the “plus” factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university’s admissions system, see 438 U.S., at 319, n. 53 (opinion of Powell, J.). But petitioners do not have a convincing argument that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits “virtually every qualified under-represented minority applicant,” App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondents Bollinger et al. 39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no Bakke-like set-asides and that consideration of an applicant’s whole spectrum of ability is no
more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic
disadvantage.
Any argument that the “tailoring” amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners’ ultimate burden of persuasion in this constitutional challenge, Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 287—288 (1986) (plurality opinion of Powell, J.), and it surely does not warrant condemning the college’s admissions scheme on this record. Because the District Court (correctly, in my view) did not believe that the specific point assignment was constitutionally troubling, it made only limited and general findings on other characteristics of the university’s admissions practice, such as the conduct of individualized review by the Admissions Review Committee. 122 F. Supp. 2d 811, 829—830 (ED Mich. 2000). As the Court indicates, we know very little about the actual role of the review committee. Ante, at 26 (“The record does not reveal precisely how many applications are flagged for this individualized consideration [by the committee]”); see also ante, at 4 (O’Connor, J., concurring) (“The evidence in the record … reveals very little about how the review committee actually functions”). The point system cannot operate as a de facto set-aside if the greater admissions process, including review by the committee, results in individualized review sufficient to meet the Court’s standards. Since the record is quiet, if not silent, on the case-by-case work of the committee, the Court would be on more defensible ground by vacating and remanding for evidence about the committee’s specific determinations.3
Without knowing more about how the Admissions Review Committee actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles’ heel. In contrast to the college’s forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is worth considering the character of one alternative thrown up as preferable, because supposedly not based on race. Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. Brief for United States as Amicus Curiae 18; Brief for United States as Amicus Curiae in Grutter v. Bollinger, O. T. 2002, No. 02—241, pp. 13—17.
While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage.4 It is the disadvantage of deliberate obfuscation. The “percentage plans” are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball.
III
If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent.
Notes
1. The Court’s holding arguably exposes a weakness in the rule of Blum v. Yaretsky, 457 U.S. 991 (1982), that Article III standing may not be satisfied by the unnamed members of a duly certified class. But no party has invited us to reconsider Blum, and I follow Justice Stevens in approaching the case on the assumption that Blum is settled law.
2. For that matter, as the Court suggests, narrow tailoring challenges against the two policies could well have different outcomes. Ante, at 18. The record on the decisionmaking process for transfer applicants is understandably thin, given that petitioners never raised a narrow tailoring challenge against it. Most importantly, however, the transfer policy does not use a points-based “selection index” to evaluate transfer applicants, but rather considers race as one of many factors in making the general determination whether the applicant would make a “ ‘contribution to a diverse student body.’ ” Ante, at 17 (quoting 2 App. in No. 01—1333 etc. (CA6), p. 531 (capitalization omitted)). This limited glimpse into the transfer policy at least permits the inference that the University engages in a “holistic review” of transfer applications consistent with the program upheld today in Grutter v. Bollinger, post, at 25.
3. The Court surmises that the committee does not contribute meaningfully to the University’s individualized review of applications. Ante, at 25—26. The Court should not take it upon itself to apply a newly-formulated legal standard to an undeveloped record. Given the District Court’s statement that the committee may examine “any number of applicants, including applicants other than under-represented minority applicants,” 122 F. Supp. 2d 811, 830 (ED Mich. 2000), it is quite possible that further factual development would reveal the committee to be a “source of individualized consideration” sufficient to satisfy the Court’s rule, ante, at 4 (O’Connor, J., concurring). Determination of that issue in the first instance is a job for the District Court, not for this Court on a record that is admittedly lacking.
4. Of course it might be pointless in the State of Michigan, where minorities are a much smaller fraction of the population than in California, Florida, or Texas. Brief for Respondents Bollinger et al. 48—49.