Back in 2003, the Supreme Court took up a question that had been building for decades: Can universities consider race in admissions to build a diverse student body? The case was Grutter v. Bollinger, and it centered on the University of Michigan Law School. The school used a holistic admissions process that considered many factors, including race, in its effort to assemble a diverse class of students.
The answer the Court gave was yes—but with limits.
Writing for the majority, Justice Sandra Day O’Connor declared that diversity in higher education is a compelling government interest. Why? Because a diverse classroom experience benefits everyone. It breaks down stereotypes, encourages cross-cultural dialogue, and prepares students for the real world. This was the first time the Supreme Court so clearly embraced diversity as a constitutional justification for affirmative action.
But the Court also made clear that this wasn’t a blank check.
O’Connor emphasized that the law school didn’t use racial quotas. Instead, it reviewed each applicant individually, with race as one factor among many. That kind of individualized, holistic review was key to the Court’s approval. The school had also tried race-neutral alternatives and found them inadequate.
Still, there was an expiration date built into the opinion. O’Connor wrote that in 25 years, the need for racial preferences in admissions should no longer exist. That sunset clause signaled the Court’s discomfort with making affirmative action a permanent fixture in American life.
The dissents were sharp.
Chief Justice Rehnquist, joined by Scalia, Kennedy, and Thomas, criticized the plan as vague and too open-ended. Justice Scalia was more blunt: he called racial classifications inherently suspect and warned against what he saw as unconstitutional social engineering. Justice Thomas, in one of his most personal opinions, argued that affirmative action demeans both the beneficiaries and the broader ideals of equality. Kennedy, though more moderate, believed the law school hadn’t done enough to narrowly tailor its use of race.
Yet despite these critiques, Grutter stood as a major milestone. It confirmed what Bakke had hinted at: that diversity could be a valid reason for considering race in higher education.
But the decision also highlighted a tension. In education, the Court seemed willing to accept forward-looking goals like diversity. In employment and contracting, by contrast, it had insisted that race-conscious policies could only be used to remedy specific, proven discrimination.
Grutter walked a fine line: it kept affirmative action alive, but under strict conditions. Universities had to show they weren’t using quotas. They had to prove they had tried other race-neutral ways of achieving diversity. And they had to remember that the clock was ticking.
Two decades later, that 25-year window would become part of the debate again—this time in Students for Fair Admissions v. Harvard. But in 2003, Grutter was a cautious green light. The Court wasn’t celebrating affirmative action. It was tolerating it. And only for a while.
Doctrinal sum-up:
Standard of Review: Strict scrutiny
Compelling Government Interest (Accepted): Educational diversity
Narrow tailoring (Satisfied): No quota; race used flexibly as one of many factors; individualized, holistic review
While I normally wholly disagree with Thomas and his outcomes, I do feel like he made some strong points in his dissent. I explained in another post, and Ginsburg states in her concurrence, that many minority students receive subpar education. Thomas acknowledges this, and in my opinion, goes too far by saying that because of this, these students "find that they cannot succeed in the cauldron of competition." While I think this is an unfair characterization, I think it is a popular one today. Because of this, I follow his reasoning in the next couple paragraphs.
Thomas states the following: "When blacks take positions in the highest places of government, industry, or academia, it is an open question whether their skin color played a part in their advancement." And he is 100% right. Though this opinion is over 20 years old, this is still common assumption. If you go on social media, it is full of people being called "diversity hires." Most of the time, these people are just as qualified as a white candidate. Yet, because of the stigma around affirmative action in education and the workplace, people assume that minority candidates cannot be as successful. It is interesting that we are currently seeing an active dismantling of all diversity efforts, yet these comments persist. It makes me wonder if this truly stems from the legacy of affirmative action, or from the deep-rooted racism of many Americans.
In Bakke, Justice Blackmun states that the United States "must and will reach a stage of maturity where the action along this line is no longer necessary," and in Grutter, O'Conner expects that in 25 years (2028) "the use of racial preferences will no longer be necessary to further interests approved today." Is the Court acknowledging that sometime in the future race based admission protocols will eventually become unconstitutional? And if it is, how can something be constitutional now and, without any change to the letter of the law, become unconstitutional at some other point in time? I feel like that is completely counter to stare decisis. To me this echoes the flaws of Korematsu and Hirabayashi. If a right is a right, no temporary circumstance can justify its violation.