The Michigan Affirmative Action Cases: Justice O’Connor, Bakke Redux, and the Mice that Roared but Did Not Prevail

THE MICHIGAN AFFIRMATIVE ACTION CASES: JUSTICE O’CONNOR, BAKKE REDUX, AND THE MICE THAT ROARED BUT DID NOT PREVAIL

Joel L. Selig*

On June 23, 2003, the United States Supreme Court issued its decisions upholding, against Equal Protection Clause challenge, the affirmative action plan for admissions to the University of Michigan Law School (the “Law School”), Grutter v. Bollinger,1 but holding unconstitutional the affirmative action plan for undergraduate admissions to the University of Michigan College of Literature, Science, and the Arts (“LSA”), Gratz v. Bollinger.2 In Grutter, the Court upheld the Law School program because student body diversity is a compelling state interest that can justify taking race into account in admissions decisions, if the use of race is narrowly tailored to serve that interest.3 The Law School satisfied the latter condition because it eschewed quotas and provided for a holistic, individualized consideration of each applicant, even though it had a goal of attaining a critical mass of underrepresented minority students, and even though it considered race a plus factor that might be decisive in the case of any particular minority applican t.4 In Gratz, the Court struck down the LSA program because, although Grutter had held student body diversity to be a compelling state interest, the LSA program was not narrowly tailored to achieve diversity through individualized consideration of each applicant.5 Rather, the LSA program used a scoring system that