51. Twenty Points and the Weight of History

On Gratz v. Bollinger

Photo by Brad Switzer on Unsplash

The year was 2003, and the stakes were twenty points.

That was the boost the University of Michigan gave to undergraduate applicants from underrepresented minority groups: twenty points out of a possible 150 in a complex admissions scoring system. It was a number that stood for more than numerical advantage. For some, it signaled a commitment to inclusion. For others, it symbolized unfair preference.

The question before the Supreme Court in Gratz v. Bollinger was simple on the surface: Did this policy violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act?

But beneath that question pulsed deeper ones: What does fairness look like in a country built on racial inequality? Can the law acknowledge past injustice without committing new ones? And when do good intentions become unconstitutional?

When a Bonus Becomes a Bludgeon

For Chief Justice William Rehnquist and the majority, Michigan’s system crossed a constitutional line—not because it sought diversity, but because of how it went about it.

Awarding an automatic twenty-point bonus to every underrepresented minority applicant was, in the majority’s view, too mechanical. It lacked the nuance and individual consideration that Bakke required and Grutter (a case decided the same day) would uphold. Rather than treating race as one thread in a rich, individual story, the university had treated it as a mathematical shortcut.

It didn’t matter that the goal was admirable. In constitutional terms, the process wasn’t “narrowly tailored.” And in strict scrutiny, that’s a fatal flaw.

Rehnquist was careful not to say that considering race was always wrong. But in the shape of a number that tipped the scale before anything else was weighed, it resembled a quota too closely for comfort. The Equal Protection Clause, he wrote, demands individualized treatment. Michigan’s policy offered something else: automation.

O’Connor’s Line in the Sand

Justice Sandra Day O’Connor joined the majority but drew her own boundaries. She agreed that the point system was unconstitutional, but refused to throw out the broader idea of race-conscious admissions.

In her view, diversity was still a compelling interest. The mistake wasn’t the presence of race in the admissions calculus; it was its inflexible weight. Twenty points for race, regardless of the student’s background, achievements, or personal story, drowned out the holistic approach the Constitution required.

O’Connor didn’t want a colorblind Constitution. She wanted a careful one, one that allowed universities to consider race as one of many factors, not a decisive tally on a spreadsheet. Her concurring opinion, more than Rehnquist’s, pointed the way forward: use race carefully, subtly, thoughtfully.

It was a lifeline for affirmative action, but only if universities were willing to trade spreadsheets for stories.

Thomas and the Ghost of Colorblindness

Justice Clarence Thomas saw things differently—radically so. For him, even subtlety was no defense. The Constitution, he argued, does not permit racial engineering. Not even for good reasons. Not even when the beneficiaries are those long denied a seat at the table.

He wrote with the sharp clarity of someone who had seen both the promise and the pain of race-based policies. And he made no exceptions. The Constitution, in his view, is colorblind. Any departure from that principle (even O’Connor’s flexible holistic model) was a betrayal.

Joined in part by Justice Scalia, Thomas’s opinion offered no middle path. No points, no preferences, no balancing acts. Just a hard, unyielding line.

Souter’s Realism

Justice David Souter dissented. And he did so with the quiet confidence of someone who had read not just the Constitution, but the admissions spreadsheets, too.

He argued that the twenty-point bonus wasn’t a quota. It didn’t guarantee admission. It didn’t reserve seats. It was just one variable among many—alongside geography, legacy status, socioeconomic background, and extracurricular achievements.

He acknowledged the Court’s requirement of strict scrutiny. But he believed Michigan had met it. The interest was compelling, and the means—while imperfect—were tailored enough. They struck a practical balance between fairness and function. Between the ideal of individualized review and the reality of processing tens of thousands of applications.

Souter’s dissent wasn’t sweeping. It was grounded. Universities, he argued, needed tools. And the point system, while blunt, was a tool. Better that than leaving everything to opaque, subjective judgment. Better transparency than pretense.

Ginsburg’s Moral Reckoning

Justice Ruth Bader Ginsburg went further. Her dissent wasn’t just about admissions. It was about history.

To her, the Court’s decision to invalidate Michigan’s policy was a refusal to see the full picture—a picture shaped by slavery, segregation, redlining, underfunded schools, and persistent inequality. Ignoring race, she argued, doesn’t erase these realities. It just hides them behind a legal fiction.

Colorblindness, in her view, was not neutrality. It was denial. And the Constitution didn’t require denial. It allowed—indeed, sometimes demanded—race-conscious efforts to correct systemic injustice.

She supported Michigan’s system not because it was perfect, but because it was open. Transparent. Honest. A visible effort to do better, rather than a disguised one. Demanding subtler methods, she warned, would only drive schools to hide what they were doing anyway.

And as for claims that white applicants were unfairly burdened? Ginsburg pushed back. The burden, she wrote, was minimal. The real burden of limited opportunity was still being carried by students of color.

The Weight Beneath the Points

In the end, Gratz v. Bollinger wasn’t about numbers. It was about narratives. About who gets seen, and how. About whether the law will allow institutions to account for the past—or insist that everyone walk into the future with blindfolds on.

The Court struck down the point system. But the deeper questions remained unresolved. How do we measure merit in a world still scarred by inequality? What counts as a fair shot when the starting lines are so uneven? And can a spreadsheet ever capture the full weight of what students bring to the table, not just in grades and test scores, but in resilience, experience, and perspective?

Twenty points can’t answer those questions. But the fight over them shows just how much they matter.

Doctrinal sum-up:

Standard of Review: Strict scrutiny

Compelling Government Interest (Accepted): Educational diversity

Narrow tailoring: (Not satisfied): The point system was too mechanical; race was not used flexibly or individually; applicants were awarded automatic points based solely on race, without holistic review