Constitutional Law Class Notes 4/1/04


On Monday, we’ll start substantive due process, the “liberty” part of the Fourteenth Amendment.  We now have a handout explaining the history of this doctrine of substantive due process.  Without some history, it’s hard to understand.  We’ll go back-to-back on Monday.  We’ll go from 1 PM to 2:40 PM.  We’ll start with Lochner, then we’ll do Griswold.


We also have a double session on Wednesday.  We’ll have a regular 50 minute class, then a break, then we’ll come back from 3 PM to 3:50 PM for the second session.  Since it’s six classes, we’ll have two different on-call groups: one for Monday and Tuesday and one for Wednesday and Thursday.


Gratz v. Bollinger


The holding is pretty clear: the undergraduate program at Michigan had a different method for admitting students.  There are a lot of complex fact, but basically the admissions program evolved into a “20 point plus” plan.  If you’re a member of one of the three underrepresented minority groups, then you get a bonus.  The holding of the case is that the fixed assignment of 20 points for being of a certain racial background is unconstitutional, even in the context of a plan that assigns points for many other soft factors.  Interestingly, the university offers the same justification as the law school did.  They assert a diversity interest and a selectivity interest.  The majority opinion in Gratz doesn’t dispute that these interests are compelling, as admitted in Grutter, but the 20 point plus factor approach is not narrowly tailored enough to achieve these compelling interests.  Justice O’Connor writes a concurrence which is the most important one.  It helps you line up Grutter and Gratz and how what the law school was doing was permissible but what the undergraduate school was doing was not.


One of the justifications that the undergraduate school supplied was administrative necessity: the undergraduate college got so many applications and it was such a large school relative to the law school that it couldn’t do the kind of file-by-file review that the law school was doing, but instead had to adopt a more structured approach to undergraduate admissions, and therefore it made sense to come up with specified point factors for all of these “soft” considerations.  They argued that they were doing the same thing the law school was doing, but had to use the point system out of necessity because of the volume of their applications.  The Court rejects this claim of necessity: this administrative necessity is not a compelling interest in itself.  It doesn’t count as narrowly tailored.  The Court tells the undergraduate program that they must adopt something like what the law school was doing.  After the case came out, the university announced that they would hire many more undergraduate admissions officers so they could process applications file-by-file.  Their argument turned out to be more about money: it would just cost more to look at applications file-by-file.


How do we understand the constitutional distinction that the Court here is adopting between what is impermissible (the 20 extra points) and on the other hand, the permissibility of the individualized file-by-file review in Grutter?  The law school asserts that what it’s looking for in the context of individualized review is “critical mass”.  The minority argued that “critical mass” converted the purported file-by-file review into effectively a quota system.  The Court rejects that.  The assignment of 20 points is obviously different from what occurred in Bakke, which was a set aside for minority medical students, and the holding in Bakke was that you can’t have that set aside.  In Gratz, you don’t have that set-aside.  20 points may or may not be enough to get you admitted.  If you scored more, or got a higher score from other factors, you would get admitted over a minority applicant who got 20 points but didn’t get a greater number of points than the other applicant.  Michigan argued that it was consistent with Bakke that they didn’t have a set-aside because all applicants were completing against each other.  The Court says that’s no good, that’s unconstitutional, but the goal of seeking “critical mass” is permissible.


20 points for all minority members does not differentiate among the diversity within those groups.  Maybe some African Americans grow up in suburbia and some grow up in the inner city.  Maybe some of them have parents who are doctors or lawyers, and others have parents who didn’t go to college.  O’Connor is concerned about how insufficiently attentive this system is to true diversity.  Socioeconomic diversity and racial diversity aren’t the same kind of diversity.


But then to look at the same question from a different angle, Justice Powell in Bakke did not use the term “critical mass”, and the Harvard plan did not use that term.  The plaintiffs in Grutter say that when the law school searches for “critical mass”, they’re not using race as a “tiebreaker”.  “Critical mass” seems to be different: from the beginning of the admissions process, you’re looking to make sure that the entering class has a certain proportion of entering students of a certain background.  There is some notion of sufficiency.  The plaintiffs say this is a quota.  But the Court in Grutter rejects that argument.  There has been variation from 12% to 20% in minority backgrounds at Michigan.  This range is inconsistent with a quota, according to the Court.


It’s not enough that you have a compelling interest here.  It seems that it’s essential to the success of the law school’s claim in this case that it’s open to the possibility year to year that they fail to reach “critical mass”.  That’s the difference between a quota and a goal, or a quota and a target.  Race cannot be outcome-determinative regardless of other considerations.  Justice O’Connor thus ties the idea of fluctuation to flexibility.  Fluctuation, in her mind, is a product of a process that is sufficiently flexible so race is never entitled to be mechanically or rigidly outcome-determinative.  We’ll look at race as one factor, but if it turns out in our applicant pool in a given year that we’re not able to achieve “critical mass”, then we don’t, and we don’t let that factor override all other factors.


We may all have views on this stuff, but ultimately we need to know what the Court thinks about the issues so we can represent clients in Court.  For example, are the LSATs inherently racist?  But on the other hand, will the current U.S. Supreme Court pay attention to this?  Probably not.


The lawyers from Michigan did a good job, it seems.  They got five votes for the law school program.  It wasn’t obvious beforehand that the votes would be there.  We knew O’Connor would cast the swing vote, but we didn’t know which way it would go.  In this part of the class, much more so than with the Commerce Clause or executive privilege, figuring out the line between a policy argument and a legal argument is really tricky and not clear-cut.


One of the issues that we talked about yesterday, and one of the issues that’s lurking in this case is whether we can trust Boalt Hall and Michigan to be honest about what they’re doing.  We’d like to think we can trust them because they are law schools and law professors, but we should put that on the table.  The majority opinion’s only response is the deference that is given to the university as a university, where the university tells us that they are looking at these reports in no rigid way and they don’t change what they’re doing based on the use of the reports.  That’s not convincing to the dissenters, but that’s what the majority says.


Cleburne was an example of “rational basis with bite”.  In this case, it seems like they’re applying a more relaxed version of strict scrutiny.  It is debatable whether this scrutiny is as strict as it was in other cases.


What about this 25-year sunset thing?  It may be an effort to narrow the ruling in a particular way.  It seems to be O’Connor’s view that even considering diversity is a compelling interest because it goes to the legitimacy of our government, she seems to say that it has a time limit on it.  The use of race cannot be unlimited and open-ended, not withstanding the necessity of the government being legitimate to its citizens.  You would think it would be imperative to have diversity and the means to achieve it no matter what!  25 years is like a generation.  O’Connor thinks we should get over it.


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