The Court’s decisions in Gratz and Grutter reaffirmed the core of Bakke even as it refined the analysis. It provided a broad general outline for constitutional affirmative action programs. which must be “holistic,” only consider race as one factor in an individualized evaluation, and may be used only for admissions decisions and only in the pursuit of the educational interest of attaining a “diverse” student body. The Court also reaffirmed that the admissions regime must be “narrowly tailored,” which required at a minimum: careful consideration of and rejection of inappropriate race-neutral options; individual, “holistic” review; no use of quotas; an approach that does not “unduly harm” non-minority applicants; and be limited in time.
One telling passage in Justice O’Connor’s opinion for the Court should be noted and may provide some hints as to where the Court could land with the Harvard ruling. The University of Michigan’s Law School stated that it would “like nothing better than to find a race-neutral admissions formula” and that it wanted to terminate its race-conscious admissions program as soon as practicable. [Resp. Br. at 34]. Justice O’Connor noted that the Grutter Court was taking up affirmative action 25 years after Justice Powell first approved the use of race to further student body diversity in Bakke. She posited that as more minority applicants with high grades and test scores had increased: “We expect 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” With the Court now sitting at a firm 6-3 majority, there is a chance that Justice O’Connor’s premonition may come to fruition.