Affirmative Action After Grutter and Gratz

Abstract

This article will examine the state of race-conscious admissions program at institutions of higher education after Grutter and Gratz. Part one first briefly reviews the Court's affirmative action jurisprudence prior to Grutter and Gratz, examining the Bakke decision, the Supreme Court affirmative action decisions between Bakke and Grutter, and the recent split in lower court decisions on the continuing viability of race-conscious admissions. Part two will then examine the Grutter and Gratz decisions themselves. Part three will then discuss the big picture of race-conscious admissions programs. Section A will analyze the general parameters established in Grutter and Gratz in terms of what is clearly permitted and clearly prohibited under the decisions. Part B will then discuss three lingering questions after the decisions: when might permissible goals for a critical mass become impermissible quotas, how much weight can be given to race as a factor in admissions, and to what extent can schools treat classes of underrepresented minorities differently. Finally, part four of the article will briefly examine the most curious, and potentially one of the most significant aspects of Grutter: the Court's requirement that race-conscious admissions have a logical endpoint to be constitutional and the Court's expectation that race-conscious admissions will no longer be necessary in twenty-five years. The actual meaning of this twenty-five year sunset discussion, made at the very end of the opinion, is less than clear, with Justice Ginsburg suggesting it expressed only a hope by the Court while Justice Thomas interpreted it as making race-conscious admissions unconstitutional in twenty-five years. This article will argue that the truth falls somewhere between the two, and that the Court's discussion is best seen not as a sunset on the constitutionality of race-conscious admissions, but rather as a sunset on the precedential value of Grutter itself.