The Language of Argument

3 7 3

T h e L a w o f D i s c r i m i n a t i o n

diverse student body. Consequently, petitioner ’s statutory claims based on

Title VI and 42 U.S.C. § 1981 also fail.

Chief Justice Rehnquist, with whom

Justices Scalia, Kennedy, and Thomas join, dissenting:

I do not believe... that the University of Michigan Law School’s means are

narrowly tailored to the interest it asserts. The Law School claims it must

take the steps it does to achieve a “‘critical mass’” of underrepresented mi-

nority students. But its actual program bears no relation to this asserted

goal....

From 1995 through 2000, the Law School admitted between 1,130 and

1,310 students. Of those, between 13 and 19 were Native American, be-

tween 91 and 108 were African-Americans, and between 47 and 56 were

Hispanic. If the Law School is admitting between 91 and 108 African-

Americans in order to achieve “critical mass,” thereby preventing African-

American students from feeling “isolated or like spokespersons for their

race,” one would think that a number of the same order of magnitude

would be necessary to accomplish the same purpose for Hispanics and

Native Americans....

Only when the “critical mass” label is discarded does a likely expla-

nation for these numbers emerge.... [F]rom 1995 through 2000 the per-

centage of admitted applicants who were members of these minority

groups closely tracked the percentage of individuals in the school’s ap-

plicant pool who were from the same groups.... The tight correlation

between the percentage of applicants and admittees of a given race, there-

fore, must result from careful race based planning by the Law School....

The Law School has offered no explanation for its actual admissions prac-

tices and, unexplained, we are bound to conclude that the Law School

has managed its admissions program, not to achieve a “critical mass,” but

to extend offers of admission to members of selected minority groups in

proportion to their statistical representation in the applicant pool. But this

is precisely the type of racial balancing that the Court itself calls “patently

unconstitutional.”

Justice Thomas, with whom

Justice Scalia joins... , concurring in part and dissenting in part:

The Law School adamantly disclaims any race-neutral alternative that

would reduce “academic selectivity,” which would in turn “require the Law

School to become a very different institution, and to sacrifice a core part of

its educational mission.” In other words, the Law School seeks to improve

marginally the education it offers without sacrificing too much of its exclu-

sivity and elite status.

The proffered interest that the majority vindicates today, then, is not

simply “diversity.” Instead the Court upholds the use of racial discrimination

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