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Supreme Court Decisions in the University of Michigan Affirmative Action Cases Have Important Implications for Employers, Federal Contractors, and Institutions Across the Fabric of American Life

July 2003
By Frank Scruggs and Joe Reeder, Greenberg Traurig

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The decisions by the United States Supreme Court in the cases of Gratz v. Bollinger and Grutter v. Bollinger have important implications for employers in the private and public sectors, state and local governments, universities, and institutions across the full spectrum of American life. The cases involve challenges to the constitutionality of the University of Michigan undergraduate and law school admissions programs on grounds that they amount to disguised quota systems that unlawfully discriminate against white applicants.

The military Amicus Brief "may be remembered as one of the most important Amicus Curiae Briefs ever submitted to the Supreme Court."
 - June 30, 2003 edition of American Lawyer

The core legal issue is whether achievement of a racially and ethnically diverse student body represents a compelling governmental interest that warrants race conscious admissions decisions, and whether the University of Michiganís policies are narrowly tailored to achieve such an interest.

The Supreme Court ruled that the University of Michiganís undergraduate admissions program unconstitutionally discriminated against applicant Jennifer Gratz, but upheld the law school program against the challenge to its constitutionality by applicant Barbara Grutter. The court expressed agreement with the principle enunciated in the pivotal opinion of Justice Louis Powell in the 1978 case, Regents of the University of California v. Bakke, that a college or university admissions program may take race into account as one of several factors in the selection of an academically talented, racially diverse student body. By a five to four margin, the Justices upheld the law school admissions program and by a six to three margin invalidated the undergraduate admissions program. The separate opinions of the court extensively describe the Justicesí assessments of how the University of Michigan admissions programs actually operate.

As expected, the amici curiae briefs of former military officers and major corporations prominently figured into the Supreme Courtís evaluation of the permissibility and importance of achieving racial diversity at highly selective institutions such as the University of Michigan and the military service academies. Greenberg Traurig lawyers, led by shareholder Joe Reeder, served as co-counsel to the distinguished group of former military officers.

Joe Reeder
Joe Reeder

The Court quoted that brief in noting that "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." The others on that brief included Reeder, General Wesley Clark (former Supreme Allied Commander in Europe and lately CNN commentator on the war in Iraq); Admiral William J. Crowe (11th Chairman of the Joint Chiefs of Staff); General Norman Schwartzkopf (Commander of Allied Forces during the Persian Gulf War); and other prominent generals, admirals, and service academic superintendents, defense secretaries, and U.S. Senators.

The importance of the case to the corporate community has been evident for many months. Sixty five major corporations having annual revenues that exceed a trillion dollars filed a friend of the court brief "to add their collective voice in support of the importance of racial, ethnic and other diversity in our leading institutions of higher education." Additionally, General Motors Corporation filed a brief asserting that selective colleges and universities provide a traditional pathway to corporate leadership and "offer a large percentage of white students their first and last opportunity," prior to entering the world of work, to shed racial stereotypes and prejudices. The Supreme Court quotes those briefs in explaining the rationale of its decision.

The decisions may not discourage other challenges to the legality of race conscious decisions outside of academe. The Court explained that the precepts of academic freedom led it to defer to the rationale espoused by the University of Michigan to justify its law school admissions policies. In American life during the twenty five years since the Bakke decision, diversity policies have become commonplace in a wide array of settings. Taken together, these decisions accentuate the need for employers in the public and private sectors, government contractors, colleges, and universities to determine whether their initiatives to improve opportunities for minorities comport with principles established by the Supreme Court.

Some organizations now may forebear from adopting race conscious initiatives because of concerns that they will not succeed in narrowly tailoring policies that can withstand strict scrutiny. Others that remain committed to their programs will use these decisions carefully to assess potential liabilities and to refine their policies. Indeed, all decision makers who seek to recruit, hire, retain, and to advance minorities will want to evaluate their policies in light of the Supreme Courtís decision in the Michigan cases.


© 2003 Greenberg Traurig

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This GT ALERT is issued for general purposes only and is not intended to be construed or used as legal advice. Greenberg Traurig attorneys provide practical, result-oriented strategies and solutions tailored to meet our clientsí individual legal needs. The Firmís responsive approach to client service often cuts across legal subject matter, applying the right experience and resources to provide cost-effective solutions.