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  • Ashley Baker

Grutter v. Bollinger Attorney: Century of Racial Preferences Finally Comes to an End

In a landmark decision today, the Supreme Court effectively overruled Grutter v. Bollinger, striking down the use of race in university admissions. The Committee for Justice and others filed an amicus brief, authored by the Pacific Legal Foundation, supporting this challenge to race-based admissions.

Committee for Justice president Curt Levey, one of the attorneys representing the plaintiff in Grutter v. Bollinger, issued the following statement:

Twenty years ago, when my colleagues and I at the Center for Individual Rights represented the plaintiffs in the University of Michigan cases (Grutter and Gratz), we aimed to end the use of race in admissions. But the Supreme Court ruled otherwise and the pernicious practice of racial preferences continued. Today that mistake was corrected.

The Supreme Court has finally ended a century of racial preferences in university admissions that started in the 1920’s with limits on the number of Jewish students admitted. As Justice Thomas noted in his concurrence, “Harvard’s ‘holistic’ ad­missions policy began in the 1920s when it was developed to exclude Jews.”

Holistic admissions evolved over time, most recently into limits on the number of Asian admittees at Harvard and the University of North Carolina—the defendant universities— and scores of other schools. Always done under the guise of achieving diversity, schools designated different racial and ethnic groups as favored or disfavored, depending on the fashions of the times.

And, of course, it is left to the judiciary to police those fashions. “[T]he dissent would certainly not permit university programs that discriminated against black and Latino applicants,” the majority noted.

Today the Supreme Court rejected that sordid game, calling “most troubling” a “judiciary that picks winners and losers based on the color of their skin.” “In [the dissent’s view], this Court is supposed to tell state actors when they have picked the right races to benefit.”

Over the last fifty years, racial preferences—in the form of lower admissions standards—were also claimed to be a necessary remedy for racial disparities in grades and test scores. Yet race-based admissions utterly failed to alleviate the disparity, ultimately serving only to cover it up.

Because academe has an almost-religious devotion to using race in admissions, the next step in this battle will be enforcement of the Supreme Court’s decision.

Much work will be needed to 1) prevent schools from engaging in outright cheating, and 2) ensure that race-neutral methods of attaining a broadly diverse student body, such as taking socioeconomic disadvantage into account, are not used as a cover for engaging in racial balancing. Expect to see litigation addressing both of these issues over the next few years.

Rather than circumventing today’s ruling and remaining obsessed with racial diversity, universities should turn their focus to achieving broad-based diversity in their student bodies. The Court’s decision leaves schools free to seek students with a genuine diversity of viewpoints and experiences. In fact, the Court noted that all parties agree that universities can consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

However, “despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. … What cannot be done directly cannot be done indirectly.”

The Committee for Justice got involved in the affirmative action cases because central to our mission is the imperative for the judiciary to engage in objective, textualist interpretation of our statutes and the Constitution, including the prohibitions on racial discrimination in the Equal Protection Clause and Title VI of the 1964 Civil Rights Act.


Read Our Amicus Brief

Media Contact: Curt Levey

Phone: (202) 510-0128


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