The Michigan Affirmative Action Cases by Barbara A. Perry

Abstract

Book Reviews 153 Barbara A. Perry. The Michigan Affirmative Action Cases. Lawrence: University Press of Kansas, 2007. Pp. 232. Bibliographic essay. Index. Cloth, $35.00; paper, $16.95. Barbara A. Perry's The Michigan Affirmative Action Cases analyzes two important 2003 Supreme Court decisions on affirmative action in education. This volume, published as part of the Landmark Law Cases and American Society series from the University of Kansas, provides the legal and historical context for Grat^ v. Bollinger et al. and Grutter v. Bollinger et al, which challenged the University of Michigan's admissions practices for undergraduates and law-school applicants. Jennifer Gratz and Barbara Grutter, two white women who were denied admission to the university's undergraduate and law-school programs, respectively, sued the University of Michigan in 1997. Both plaintiffs claimed that they had been denied their Fourteenth Amendment rights to equal protection of the laws and their rights under Tide VI of the 1964 Civil Rights Act; both suedwith the legal assistance of the Center for Individual Rights (OR), a conservative public-litigation organization dedicated to ending racial preferences. The CIR's involvement portended the intervention of numerous interested third parties in these two cases; when the Supreme Court heard oral arguments in the cases in 2002, they received nearly one hundred amici curiae briefs. The heated controversy surrounding these cases was a product of the nation's long and tangled history of race relations. By way of background to Grat% and Grutter, Perry provides a particularly nuanced history of how Michigan's racially polarized politics both gave rise to, and resulted from, previous legal batdes over school busing and affirmative action in employment. The 2003 cases were no different. When the Supreme Court struck down the University of Michigan's undergraduate-admissions policies, but upheld those of the law school, affirmative-action supporters celebrated, while opponents mobilized support for an amendment to Michigan's constitution banning the use of racial preferences (itwas approved by voters in 2006, thus rendering the Grutter decision moot inMichigan). Perry's account of the legal issues involved in these cases initially focuses on the Supreme Court's first major educational affirmative action decision, Regents of the University of California v. Bakke (1978). In Bakke, a white man denied admission to the University of California Davis's Medical School won a decision that racial quotas were constitutionally impermissible. Yet Justice Lewis Powell also indicated 154 Michigan Historical Review in his opinion in Bakke that "diversity" was a "compelling state interest" (p. 90) that could justify some use of racial preferences in educational settings. Many institutions, including the University of Michigan, subsequendy developed admission procedures accordingly, offering diversity as the rationale for their affirmative-action programs. Given that a majority of justices did not join this portion of Powell's opinion, however, the precedential status of his pronouncement on diversity remained in question until, fittingly, his close friend and fellow "judicial diplomat" (p. 96), Justice Sandra Day O'Connor, direcdy embraced diversity as a compelling state interest in her majority opinion in Grutter. After describing the cases' historical background and their controversial journey to the Supreme Court, Perry devotes three entire chapters to the briefs submitted to the Court, oral arguments before the Court, and the Court's decisions. She artfully describes complex legal arguments, even providing an outline of the questions the Supreme Court had to consider. Perry's description of oral arguments is especially fine, as she defdy weaves together the finer points of equal-protection jurisprudence and fascinating biographical details about the justices, all in a dramatic narrative form. Perry's insights into individual personalities were enabled by her contacts at the Court and her ability to interview many of the major participants in the Grat% and Grutter cases. They also serve as a useful reminder that notwithstanding the high-flown legal rhetoric and the powerful interests involved, opinions on both sides of the affirmative action question, even for judges, continue to be intensely personal. With Justice O'Connor's retirement, and a new, conservative majority on the Court, the long-term legacy of her embrace of diversity is in question. The two Michigan affirmative-action cases may ultimately prove...