But looming in the background were the two cases, which had been filed a few years before Krislov arrived. The Center for Individual Rights had led a charge to search for students who believed they had been denied admission to the university on the basis of their race, and they found them. One student, Barbara Grutter, a white woman, had been denied admission to the law school; another, Jennifer Gratz, also a white woman, had been denied admission to the undergraduate school.
The two separate cases at the University of Michigan reflected two separate systems of race-conscious admissions. The law school took the tack that Justice Lewis Powell had lavished praise upon in his 1978 opinion in the landmark Supreme Court case upholding the use of race in admissions. In the Regents of the University of California v. Bakke case, Powell wrote that using race as one of many factors in considering an individual was the ideal way of doing admissions. But the undergraduate school, which was challenged by Gratz, used a point system; the system held that blacks, Latinos, Native Americans, and low-income applicants were assigned 20 points automatically.
Over the course of six years, the cases wound their way through the courts, before arriving at the Supreme Court. And there were two very different outcomes. In a 5–4 decision, the university won in the case brought by Grutter, and the Court upheld the use of race in admissions for the purpose of campus diversity as long as it was used in a “narrowly tailored” way. The same could not be said for the undergraduate college. “It was found to be formulaic and not narrowly tailored,” Krislov told me. In a 6–3 decision, the Court found the undergraduate policy to be in violation of the equal-protection clause of the Fourteenth Amendment.
But Justice Ruth Bader Ginsburg had a different take. In her dissenting opinion, she wrote: “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed college affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” Isn’t it better, she asked, to just be honest about what you’re doing in admissions instead of disguising it?
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Still, the university was forced by the Court to change its undergraduate admissions policy. In an interview with Judy Woodruff, then an anchor at CNN, shortly after the decision, Mary Sue Coleman, the university’s president at the time, said the shift wouldn’t be that difficult. “What we may do is to fashion our undergraduate policy along the lines of the law-school policy, which the Court said is fine and said that the law-school policy is constitutional,” she said. “And what that means is it’s a more individualized attention to every single application. And we’re happy to do that.”