123 S. Ct. 2325 (2003), argued 1 Apr. 2003, decided 23 June 2003, by vote of 5 to 4; O’Connor for the Court, joined by Stevens, Souter, Ginsburg, and Breyer, joined in part by Scalia and Thomas, Ginsburg concurring, joined by Breyer, Scalia concurring in part and dissenting in part, joined by Thomas, Thomas concurring in part and dissenting in part, joined by Scalia, Rehnquist dissenting, joined by Scalia, Kennedy and Thomas, Kennedy dissenting. Gratz v. Bollinger, 123 S. Ct. 2411 (2003), argued 1 Apr. 2003, decided 23 June 2003, by vote of 6 to 3; Rehnquist for the Court, joined by O’Connor, Scalia, Kennedy and Thomas, O’Connor concurring, joined in part by Breyer, Thomas concurring, Breyer concurring in the judgment, Stevens dissenting, joined by Souter, Souter dissenting, joined in part by Ginsburg, Ginsburg dissenting, joined by Souter and joined in part by Breyer.
In these two cases, the Supreme Court revisited for the first time since Bakke the question of whether, and in what manner, the Equal Protection Clause of the Fourteenth Amendment permits a public university to consider the race of applicants in its admissions decisions. In Grutter, the Court considered the admissions policy for the University of Michigan Law School; in Gratz, it considered the admissions policy for the University of Michigan's undergraduate program.
Both policies had as a goal the admission of a racially diverse student body and, to that end, took into consideration an applicant's race. The policies differed, however, in how they factored race into the admissions process. The law school's policy required that each applicant be individually evaluated based on his or her entire file (undergraduate grade point average, law school admissions test (LSAT) scores, a personal statement, letters of recommendation, and an essay describing the way in which the applicant would contribute to the life and diversity of the law school). It instructed admissions officials to ensure that applicants had the ability to “do well enough to graduate with no serious academic problems,” but also to assess “the applicant's likely contribution to the intellectual and social life of the institution.” One express aim of the policy was to “achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts.” Special attention was to be given to the inclusion of students from groups that have been historically discriminated against, such as African-Americans, Hispanics, and Native Americans, who without this commitment might not be represented in the student body in meaningful numbers. For those underrepresented groups, the stated goal was to enroll a “critical mass,” in order to “ensure their ability to make unique contributions to the character of the Law School.”
At the undergraduate level, the university sought to increase the number of underrepresented minorities through an admissions policy that assigned twenty points to every applicant from an underrepresented minority group, one-fifth of the one hundred points needed to guarantee admission and more than the points assigned to any other attribute.