Abstract

Perhaps no case better exemplifies the tensions between colorblindness and color-consciousness than Grutter v. Bollinger, the lawsuit that challenged affirmative action in admissions at the University of Michigan Law School. Before the litigation began, the federal courts were deeply divided over the legitimacy of weighing race in deciding whether to offer applicants a seat in the entering class of a college or university. When the lawsuit was filed, the parties took dramatically different positions on whether affirmative action was a blight on individual fairness or a boon to racial justice. Intense disagreements about the legitimacy of affirmative action in turn led to split decisions and judicial in-fighting. Even the United States Supreme Court’s ruling ultimately could not resolve the controversy. Grutter is the story of a jurisprudence of fragmentation, fraught with the ambiguity and ambivalence born of unresolved conflict. This chapter traces the roots of this conflict and how they were expressed in the litigation. The account shows how the symbolism of the landmark victory in Brown v. Board of Education was supple enough to allow all of the parties involved to claim that they were the decision’s true heirs. Barbara Grutter, a disappointed white applicant to the law school, insisted that Brown stood for an end to race-based government decision-making except where necessary to rectify past official discrimination. Because Michigan had not been found guilty of any wrongdoing, its affirmative action program violated this principle of colorblindness. The law school asserted that Brown had spawned the Court’s decision in Regents of the University of California v. Bakke, which allowed a very modest consideration of race to advance the robust exchange of ideas and academic freedom. As a result, the admissions program was entirely consistent with the quest for desegregation. The student-intervenors were convinced that both Grutter and Michigan had it wrong. Brown was a sweeping mandate to dismantle racial subordination and stratification. Under this interpretation, the law school was not doing nearly enough to promote transformative change. The story of Grutter reveals how the courts struggled to resolve this battle for Brown’s legacy.