Revisiting Grutter and Gratz in the Wake of Fisher: Looking Back to Move Forward

Abstract

This article revisits the University of Michigan's 2003 affirmative action cases, Grutter v. Bollinger and Gratz v. Bollinger. Through the aid of critical textual analysis and critical race theory, the author looks back at the predominant narratives that framed the challenge to, and defense of, race-conscious affirmative action policy in the University of Michigan cases. In the wake of Fisher v. University of Texas Austin, the third affirmative action case to be heard before the United States Supreme Court within the last decade, the author suggests that revisiting Grutter and Gratz may be helpful to understand the evolution of arguments for and against affirmative action.

Notes

1. In Bakke, Allan Bakke, a white male, brought suit against the Medical School at the University of California at Davis after twice being denied admission. Bakke contended that Davis’ practice of designating 16 of its 100 admission slots for traditionally under-represented students represented an illegal set-aside program. While the Supreme Court affirmed that Davis’ practices were unconstitutional, a slim majority of the Court upheld the school's use of race-conscious practices as a “plus” factor in university admissions.

2. While the cases drew in a record number of amicus briefs, it should be noted that 30+ briefs were filed in joint support of the University of Michigan's undergraduate and law school cases, while 10+ briefs were filed in joint support of petitioners Grutter and Gratz. The briefs total 87 without double counting joint briefs submitted in each case.

3. Examples include but are not limited to: Sweatt v. Painter (1950); McLaurin v. Oklahoma State Regents (1950); Brown v. Board of Education (1954); San Antonio Independent School District v. Rodriguez (1972); Lau v. Nichols (1974); Crawford v. Los Angeles Board of Education (1981); Plyler v. Doe (1981); Parents Involved in Community Schools v. Seattle School District No. 1 (2006). All of these cases directly address the issue of educational opportunities, or lack thereof, for historically under-represented students across the K-12 and higher education spectrum.

4. ATLAS.ti is a comprehensive qualitative coding software. What makes ATLAS.ti different from other software is its data management, organization, and hyperlinking. Data management is undertaken across multiple levels, including document, code, memo, and/or quotation. Users may undertake coding and analysis both within and across documents, as well as in this exercise, within and across and cases. Additional information may be found at http://www.atlasti.com.

5. It should be noted that with a total of 92 amicus briefs, Fisher v. U.T. Austin eclipsed Grutter and Gratz in the number of briefs submitted to the Supreme Court.

6. In Sweezy v. New Hampshire (1957) Justice Felix Frankfurter uttered the four essential freedoms of a university, which would be famously cited in the Regents of the University of California v. Bakke (1978) by Justice Lewis Powell. These freedoms offered under the protection of the First Amendment gave deference to a university to decide for itself: who may teach, what may be taught, how it shall be taught; and who may be admitted to study.