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
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
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
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.
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
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
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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