Race-Conscious University Admissions
Challenges in Attaining Student Body Diversity in the Grutter/Gratz Era

By GEORGE W. JORDAN III

Over the last 25 years, Justice Powell’s opin-ion in the landmark Regents of Univ. of Cal. v. Bakke1 Su-preme Court decision has been the touchstone for constitutional analysis of race-conscious admission policies. While many universities modeled their admission programs on Justice Powell’s views on permissible race-conscious policies, many courts struggled with the question of whether Justice Powell’s opinion was binding precedent in view of the Supreme Court’s splintered decision2 in Bakke. That question is now moot due to the Supreme Court’s endorsement in Grutter v. Bollinger3 of Justice Powell’s view that student body diversity is a compelling interest.4 Grutter together with the Supreme Court’s other decision this past June on race-conscious admission policies-Gratz v. Bollinger5-offers new guidance for analyzing whether a university’s race-conscious admission policies violate the Equal Protection Clause of the Fourteenth Amendment. Not since Bakke had the Supreme Court directly addressed the use of race-conscious admission policies.
In Grutter, the Supreme Court held the University of Michigan Law School’s (“Law School”) race-conscious admission policies did not violate the Equal Protection Clause because they were narrowly tailored to further a compelling interest in obtaining educational benefits flowing from a diverse student body,6 whereas in Gratz the Court held the university’s undergraduate race-conscious admission policies violated the Equal Protection Clause because they were not narrowly tailored to achieve the asserted compelling interest in diversity.7 The University of Michigan’s success in Grutter, however, must be balanced against the majority’s expressed wish for the end of race-conscious admission policies: “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”8 Regardless of whether these words are a mandate or an aspiration, universities have an urgent new challenge in pursuing student body diversity. In an effort to aid with that challenge, this article explores Grutter and Gratz with an emphasis on the concepts of student body diversity, a “critical mass of underrepresented minorities,” “individualized consideration,” point systems, race-neutral alternatives, and durational requirements.

Student Body Diversity
Under the Equal Protection Clause, all racial classifications are subject to strict scrutiny.9 Strict scrutiny requires that such classifications be narrowly or precisely tailored to further compelling governmental interests.10 Not all governmental uses of race are invalidated by strict scrutiny.11 To those more trusting of the use of race, strict scrutiny serves to validate the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context.12 To those less trusting of the use of race, strict scrutiny serves to smoke out illegitimate uses of race.13
“Today we hold the Law School has a compelling interest in attaining a diverse student body.”14 This holding of the Supreme Court in Grutter was based on deference to the Law School’s judgment that diversity is essential to its educational mission.15 Drawing from the principle of student body diversity16 announced in Bakke, the Court emphasized educational autonomy-“[t]he freedom of a university to make its own judgments as to education [which] includes the selection of its own student body...”17-and a presumption of good faith on the part of the university.18 The Court thus rooted its holding in the First Amendment and the “important purpose of public education.”19
The Supreme Court concluded the Law School’s judgment on diversity was substantiated by “real” educational benefits.20 These benefits include preparation of students for an increasingly diverse workforce and society.21 Based on the amicus briefs of 3M, General Motors, and other major American businesses, the Supreme Court acknowledged that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”22 With respect to underrepresented minority students, the Court recognized that such students are likely to have experiences of particular importance to the Law School’s mission given our nation’s struggle with racial inequality.23 Concerning diversity, the Law School seeks individuals with “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others” and individuals with “varying backgrounds and experiences who will respect and learn from each other.”24 Similar to the Court’s adoption of the views advanced by certain major American businesses, it accepted the United States military’s view that a “highly qualified, racially diverse officer corps” is essential to fulfilling its principal mission to provide national security.25
Another educational benefit endorsed by the Court was promoting learning outcomes.26 The Supreme Court agreed with the district court’s view that promoting cross-racial understanding and breaking down racial stereotypes are “important and laudable.”27 One such stereotype is the belief that there is a characteristic minority viewpoint as opposed to there being a variety of viewpoints among minority students.28 The Supreme Court agreed that the Law School cannot diminish the force of these racial stereotypes with only token numbers of minority students.29
Moreover, the Supreme Court emphasized “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”30 The Court expressly derived this reasoning from Brown v. Board of Education of Topeka31-“education...is the very foundation of good citizenship”32-and Sweat v. Painter33-law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.”34 Like in Sweatt v. Painter, the Supreme Court acknowledged that universities and particularly law schools represent the training ground for many of our nation’s leaders.35 For example, based on the Association of American Law School’s amicus brief, the Court noted that highly selective law schools account for 25 percent of United States senators, district court judges, and appellate court judges.36 In his dissent, Justice Thomas dismissed this reasoning as merely an attempt to create “classroom aesthetics.”37

Critical Mass of Underrepresented Minorities
While the Law School’s admissions policy recognized many types of diversity contributions, the Law School’s policy especially reaffirmed its longstanding commitment to racial and ethnic diversity.38 To further its compelling interest in student body diversity, the Law School sought to attain a “critical mass of underrepresented minority students.”39 By enrolling a critical mass of underrepresented minority students, the Law School sought to ensure that these students make unique contributions to the character of the Law School.40 The Court explained this goal did not make the Law School’s program into a quota.41 As previously stated by the Court, a “quota” is “a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups.”42 In other words, quotas “impose a fixed number or percentage which must be attained, or which cannot be exceeded”43 and “insulate the individual from comparison with all other candidates for the available seats.”44
In Bakke, Justice Powell flatly rejected the notion that giving greater weight to race than some other factors to achieve student body diversity is the functional equivalent of a quota.45 Like the Harvard plan described in Bakke and discussed below, the Supreme Court recognized that a program can pay some attention to numbers without creating a quota.46 There is “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.”47 In Bakke, Justice Powell recognized that 10 or 20 African-Americans could not begin to provide a variety of points of view of African-Americans in the United States.48
Between 1993 and 2000, the number of African-American, Latino, and Native-American students in each Law School class varied from 13.5 to 20.1 percent.49 The Supreme Court found this range to be inconsistent with a quota.50 As other evidence indicating a lack of racial balancing, the Court emphasized the number of underrepresented minority students enrolled in the Law School differed substantially from their representation in the applicant pool and varied considerably for each group from year to year.51 According to the Law School’s expert, underrepresented minority students comprised 14.5 percent of the entering class in 2000 and would have only comprised 4 percent if race were not a factor.52
The Supreme Court’s endorsement of the Law School’s effort to attain a critical mass of underrepresented minorities was apparently based on testimony of persons from the Law School. The Director of Admissions of the Law School testified he used daily reports to keep track of the racial and ethnic composition of the class to ensure that a critical mass of underrepresented minority students would be reached.53 He also testified that he did not seek to admit any particular number or percentage of underrepresented minority students.54 Similarly, the successor Director testified that there was no number, percentage, range of numbers or percentages that constituted critical mass.55 Both the Dean of the Law School and the successor Director testified to understanding “critical mass” to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.56
In his dissent in Grutter denouncing the Law School’s race-conscious admission program as the “meddling of university administrators,” Justice Thomas quoted a speech by Frederick Douglass to a group of abolitionists declaring, among other things, “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. . . . Do nothing with us! . . . All I ask is, give him a chance to stand on his own legs.” 57 Justice Thomas felt that this message was lost on the majority in Grutter.58 However, Frederick Douglass’s views of what African-Americans wanted in 1865 cannot be equated with what African-Americans want today after over a century of government-sanctioned racial inequality. Furthermore, the majority’s treatment of education as the very foundation of good citizenship might be well aligned with Frederick Douglass’s focus on citizenship through advocacy of the right of the Negro to vote.59
The impact of Grutter and Gratz on historically black colleges (HBC(s)) is unclear. In his dissent in Grutter, Justice Thomas expressed concern that under the majority’s view of the Equal Protection Clause, an HBC could offer evidence that racial homogeneity will yield educational benefits and rely upon such evidence to reject white applicants.60 Regardless of whether an HBC offers such evidence, the Supreme Court in Grutter recognized a compelling interest in a heterogeneous student body, not a homogeneous student body.

Individualized Consideration
To avoid violating the Equal Protection Clause, a race-conscious admission program must be “narrowly tailored” to further a compelling interest in student body diversity.61 “Narrow tailoring” ensures that a race-conscious admission program does not unduly harm members of any racial group.62 To be narrowly tailored, a race-conscious admission program must satisfy the requirement of “individualized consideration,” which is “paramount.”63 “When using race as a ‘plus’ factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”64
In Bakke, the admissions program in issue was a special admission program of the University of California Medical School (“Medical School”) that was separate from the regular admissions process and devised to increase the representation of “disadvantaged” students.65 If an application form indicated that an applicant wished to be considered as a member of the preferred group, consisting of “Blacks,” “Chicanos,” “Asians,” or “American Indians,” then the application was forwarded to a special admissions committee.66 A general admission committee would assign a benchmark score to each applicant undergoing the regular admissions process, and the special admissions committee would assign a benchmark score to the special applicants.67 The benchmark score was based on interviews, overall grade point average, grade point average in science courses, Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data.68 Unlike regular applicants, special candidates did not have to meet the 2.5 grade point average cutoff.69 In 1973 and 1974, the number of seats set aside for special candidates was 16 out of a class size of 100.70
Allan Bakke was a white male who applied to the Medical School in both 1973 and 1974.71 At the time Bakke was rejected admission, there were four special admission seats unfilled.72 In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s.73 Justice Powell termed this denial of the right to “individualized consideration” without regard to race-denying applicants who are not members of the preferred group the chance to compete for the special admission seats as the “principal evil” of the Medical School’s special admissions program.74 Thus, Bakke involved a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups.75
As a benchmark for “individualized consideration,” the Supreme Court in Gratz and Grutter considered the Harvard College admissions program endorsed by Justice Powell.76 The Harvard program had expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups.77 In practice, this meant race was a factor in some admission decisions.78 For example, in the large middle group of applicants that are “admissible,” the race of an applicant could tip the balance just as geographic origin or a life spent on a farm could tip the balance in other candidates’ favor.79 The program recognized that a black student can usually offer something a white person cannot offer.80 While the program was aware of a need to include more than a token number of black students, the program did not set quotas for their number.81 Justice Powell characterized this admissions program as flexible enough to consider all pertinent elements of diversity and to make race a “plus” without race becoming decisive.82
The Supreme Court concluded that the Law School afforded individualized consideration to applicants of all races by giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.83 “Like the Harvard plan, the Law School’s admission policy is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”84 In other words, all factors that may contribute to student body diversity are meaningfully considered alongside race in admission decisions.85 Examples of these factors, which were part of the Law School’s 1992 policy, included wide travel abroad, living abroad, fluency in several languages, overcoming personal adversity and family hardship, exceptional records of extensive community service, and successful careers in other fields.86 As indicated by the Supreme Court, applicants have the opportunity to highlight their potential diversity contributions through submission of a personal statement, letters of recommendation, and an essay87 One sign that other diversity factors are being considered alongside race is the Law School frequently accepted non-minority applicants with grades and test scores lower than the underrepresented minority applicants who were rejected.88
Unlike the race-conscious admissions program used by the Law School that the Supreme Court in Grutter found employed individualized consideration, the race-conscious admissions program used by the University of Michigan’s Office of Undergraduate Admissions (OUA) was found constitutionally lacking in the necessary individualized consideration by the Supreme Court in Gratz.89 Beginning with the 1998 academic year, the OUA used a “selection index” on which an applicant could score a maximum of 150 points.90 An applicant who is a member of an underrepresented racial or ethnic minority group was entitled to 20 points.91 The Supreme Court held that the OUA’s policy, which “automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race” was not narrowly tailored to achieve educational diversity.92 As conceded by the OUA, the effect of these 20 points was virtually every qualified underrepresented minority applicant was admitted.93 Thus, race was a “decisive” factor,94 and the Supreme Court held that the OAU’s admissions policy was not narrowly tailored to achieve diversity.95
After points were automatically distributed, the OUA gave admission counselors the discretion to “flag” an application for an Admission Review Committee (ARC) to review, in effect allowing the ARC to ignore the points.96 For an application to be flagged, the ARC would first determine that the applicant was academically prepared to succeed at the university, had achieved a minimum selection index score, and possessed a quality or characteristic important to the university’s freshman class composition.97 The ARC met periodically to discuss the files of “flagged” applicants not already admitted by the selection index parameters.98 After discussing each flagged application, the ARC decided whether to admit, defer, or deny the applicant.99 The Supreme Court considered this flagging program as emphasizing the flaws of the university’s admissions program.100 Because points were awarded beforehand, some applicants would never be flagged.101 Further, it was undisputed that the flagging program was an exception rather than the rule.102 This after-the-fact, limited individualized consideration through flagging did not prevent race from being a decisive factor.103

Point System
Under the point-based, race-conscious admission program in Gratz, up to 110 points could be assigned for academic performance and up to 40 points could be assigned for non-academic factors.104 While some soft variables like race were assigned 20 points, other diversity contributions like leadership and service, personal achievement, and geographic diversity were capped at much lower levels.105 Individualized consideration demands that race be used in a flexible, non-mechanical way.106 The Supreme Court considered the automatic diversity bonuses based on race or ethnicity awarded by the admission program at issue in Grutter as “mechanical.”107 As explained by Justice O’Connor in her concurring opinion, automatic, predetermined point allocations for “soft variables” ensure that diversity contributions of applicants cannot be individually assessed.108
The holding in Gratz yet may not spell doom for all point-based, race-conscious admission programs. What if there were a range of points from which a university could individually award points based on race rather than an automatic 20 points? What if this range of points alone was not sufficient to move an applicant from the reject category to the accept category? What if points were individually awarded based on all diversity contributions of an applicant rather than separately awarding points for each diversity contribution like race? What if race only resulted in a point kicker if an applicant had other significant diversity contributions? Let’s take the students A, B, and C described by Justice Powell as an example. Student A is the child of a successful black physician in an academic community with promise of superior academic performance; student B is a black student who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower but who had demonstrated energy and leadership; and student C is a white student with extraordinary artistic talent.109 The above approaches might provide a university with the flexibility to favor or disfavor student C over students A and B. Thus, a point-based admissions program that uses race in a flexible, non-mechanical way might lead to a different result than seen in Gratz.

Race-Neutral Alternatives
Narrow tailoring does not require “exhaustion of every conceivable race-neutral alternative,” but does require “serious, good faith consideration” of workable race-neutral alternatives that will achieve the university’s diversity goals.110 The Supreme Court found that the Law School sufficiently considered workable race-neutral alternatives.111 The Court did not penalize the Law School for not using a “lottery” because it would effectively sacrifice all other educational values including other diversity factors.112 Similarly, the Court did not penalize the Law School for not decreasing the emphasis on undergraduate GPA and LSAT scores because it would sacrifice a vital component of its educational mission.113 While the United States advocated “percentage plans” like those here in Texas, the Supreme Court cautioned these plans might prevent a university from assembling a student body that is diverse along all the qualities valued by the university.114 Other issues with percentage plans identified by the Court were whether they could work for graduate and professional schools and whether such plans were race-neutral.115 In considering race-neutral alternatives “currently capable” of producing a critical mass, the Law School did not need to abandon the academic selectivity that is the “cornerstone” of its educational mission.116 This suggests that if academic selectivity is not part of a university’s mission, then the university may need to consider race-neutral alternatives that sacrifice some academic quality. In the Grutter/Gratz era, a university’s educational mission may greatly impact whether the university can offer a race-conscious admission program that does not violate the Equal Protection Clause.

Durational Requirements
Grutter makes clear that race-conscious admission programs must have a backstop or “logical end point.”117 Because the “core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race,”118 permanent race-conscious admission programs would be constitutionally offensive.119 The requirement that race-conscious admission programs have a termination point ensures that racial classifications are not employed more broadly than the interest demands.120 Two examples offered by the Supreme Court for satisfying these durational requirements are sunset provisions and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.121 The Supreme Court invited universities to draw on the “most promising aspects” of race-neutral alternatives as they develop.122
This raises the question of how a university determines when racial preferences are no longer necessary to achieve student body diversity. In support of its expectation that 25 years from now the use of racial preferences will no longer be necessary to further an interest in student body diversity, the Supreme Court emphasized that the number of minority applicants with high grades and test scores has increased over the last 25 years.123 Thus, one possibility is that a university could periodically track the GPAs and LSAT scores of its minority applicants. As the gap closes between the average GPAs and LSAT scores of underrepresented minority applicants as compared to the average GPA and LSAT scores of other applicants, the university could peel back its use of race by reducing the range of points given based on race or only using race as a tiebreaker.124

Messages from the Supreme Court
Grutter and Gratz hold messages to all concerned. The messages to universities are (1) to use race flexibly along with other diversity contributions of an applicant without race being decisive in considering the applicant’s individual background, experiences, and characteristics; (2) to avoid automatic distribution of points based on race; (3) to fully consider workable race-neutral alternatives; (4) to use race only so long as necessary to achieve student body diversity; and (5) to prepare to put the brakes on and stop the use of race altogether. Going forward, more guidance is needed as to the nature of workable point-based admission policies and workable race-neutral alternatives. The message to applicants is to emphasize their diversity contributions through interviews, essays, personal statements, and letters of recommendation. The message to talented underrepresented minorities is to apply to the leading universities in the country where diversity contributions are fairly considered and their presence is not just a token number. The message to those opposed to any use of race by universities in admission policies is that twenty-five years from now they might, for better or worse, have their wish.

Endnotes
1. 438 U.S. 265 (1978)(opinion of Powell, J.). 2. The Bakke decision produced six separate opinions, none of which commanded a majority. 3. 123 S.Ct. 2325 (2003)(affirming judgment of the Sixth Circuit). 4. Id. at 2339. 5. 123 S.Ct. 2411 (2003)(reversing the district court’s decision in part). 6. Grutter, 123 S.Ct. at 2347. 7. Gratz, 123 S.Ct. at 2430. 8. Grutter at 2347. 9. Id. at 2337. 10. Id. at 2337-38. 11. Id. at 2338. 12. Id. 13. Id.(citing Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)). 14. Id. at 2339. Where the compelling interest is correcting past discrimination, the remedial action upon the university is subject to “continuing oversight” by a court. Bakke, 438 U.S. at 308. Thus, universities have little incentive to argue this form of compelling interest. 15. Grutter, 123 S.Ct. at 2339. 16. Justice Powell used the term “educational diversity.” Bakke, 438 U.S. at 316. 17. Grutter, 123 S.Ct. at 2339 (quoting Bakke, 438 U.S. at 312). “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” Bakke, 438 U.S. at 312. 18. Grutter, 123 S.Ct. at 2339. 19. Id. 20. Id. at 2339-40. 21. Id. at 2340. 22. Id. 23. Id. at 2344. The terms “underrepresented minorities” as used by the Law School consist of African-Americans, Hispanics and Native Americans. Id. at 2332. 24. Id. at 2331. 25. Id. at 2340. 26. Id. 27. Id. 28. Id. at 2341. 29. Id. The Supreme Court’s reasoning tracks the testimony by a professor who was at the Law School when the 1992 admissions policy was adopted and who submitted expert reports on the educational benefits of diversity. Id. at 2334. 30. Id. at 2341. 31. 347 U.S. 483 (1954). 32. Brown, 347 U.S. at 493. In Brown v. Board of Education, the Supreme Court held that segregation in public education violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 495. 33. 339 U.S. 649 (1950). 34. Sweatt, 339 U.S. at 634; Bakke, 438 U.S. at 313-14 (quoting Sweatt v. Painter). In Sweatt v. Painter, the Supreme Court held that the Equal Protection Clause required that Heman Sweatt be admitted to the University of Texas Law School. 339 U.S. at 636. 35. Grutter, 123 S.Ct. at 2341. 36. Id. 37. Id. at 2353 (Thomas, J., dissenting). As a friend of mine who is a teacher stated, “classroom aesthetics” are what a teacher places on a bulletin board. 38. Id. at 2332. 39. Id. at 2341. 40. Id. at 2332. 41. Id. at 2343. 42. Id. at 2342 (citing Richmond v. J.A. Croson Co., 488 U.S. 469, 496 (1989)(internal citations omitted)). 43. Id. (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (1986)(O’Connor, J., concurring in part and dissenting in part)). 44. Id. (citing Bakke, 438 U.S. at 317). 45. Id. (citing Bakke, 438 U.S. at 317-18). 46. Id. at 2343. 47. Id. (quoting Bakke, 438 U.S. at 323). 48. Bakke, 438 U.S. at 323. 49. Grutter at 2343. 50. Id. 51. Id. 52. Id. at 2334. 53. Id. at 2333. 54. Id. 55. Id. 56. Id. at 2333-34. 57. Id. at 2350 (Thomas, J., dissenting)(quoting What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991). 58. Grutter at 2350. 59. Id. at 2340. 60. Id. at 2358 (Thomas, J., dissenting). 61. Id. at 2342-43. 62. Id. at 2345. 63. Id. at 2343. 64. Id. 65. Bakke, 438 U.S. at 272. 66. Id. at 274.
67. Id. at 274-75. 68. Id. at 274. 69. Id. at 275. 70. Id. 71. Id. at 276. 72. Id. 73. Id. at 277. 74. Id. at 318 n.52. 75. Grutterat 2335. 76. Gratz at 2428; Grutter at 2342. 77. Bakke, 438 U.S. at 316. 78. Id. 79. Id. 80. Id. 81. Id. 82. Id. at 317. 83. Grutter at 2343. 84. Id. at 2343-44 (quoting Bakke, 438 U.S. at 317). 85. Id. at 2344. 86. Id. 87. Id. 88. Id. 89. Gratz at 2428. 90. Id. at 2419. 91. Id. 92. Id. at 2427-28. 93. Id. at 2429. 94. Id. at 2430. 95. Id. 96. Id. at 2420, 2429. 97. Id. at 2420. 98. Id. at 2432 (O’Connor, J., concurring). 99. Id. 100. Id. at 2429. 101. Id. 102. Id. 103. Id. at 2430. 104. Id. at 2431 (O’Connor, J., concurring). 105. Id. at 2432 (O’Connor, J., concurring). 106. Grutter at 2343. 107. Id. (citing Gratz). 108. Gratz at 2432 (O’Connor, J., concurring). 109. Id. at 2428-29; Bakke, 438 U.S. at 324. 110. Grutter at 2344-45. 111. Id. at 2345. 112. Id. 113. Id. 114. Id. 115. Id. 116. Id. 117. Id. at 2346. 118. Id. (quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)). 119. Id. 120. Id. 121. Id. 122. Id. (referring to experimentation by universities in California, Florida and Washington State). 123. See id. at 2346-47. 124. See Bakke, 438 U.S. at 316 (describing a Harvard College program example where race may tip the balance in the “large middle group of applicants”).


George W. Jordan III is of counsel in the Houston office of Akin Gump Strauss Hauer & Feld LLP. He earned his J.D from the University of Texas School of Law in 1996.

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