The Language of Argument

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C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

universities in California, Florida, and Texas, the United States contends that

Michigan could get student diversity in satisfaction of its compelling inter-

est by guaranteeing admission to a fixed percentage of the top students from

each high school in Michigan.

While there is nothing unconstitutional about such a practice, it nonethe-

less suffers from a serious disadvantage.* It is the disadvantage of deliberate

obfuscation. The “percentage plans” are just as race conscious as the point

scheme (and fairly so), but they get their racially diverse results without

saying directly what they are doing or why they are doing it. In contrast,

Michigan states its purpose directly and, if this were a doubtful case for me,

I would be tempted to give Michigan an extra point of its own for its frank-

ness. Equal protection cannot become an exercise in which the winners are

the ones who hide the ball.

1. Describe the main differences among the following admissions programs.
   Which of these differences are relevant to the constitutionality of these pro-
   grams, in your opinion?
   a. The admissions program at Michigan Law School
   b. The admissions program at Michigan’s College of Literature, Science,
   and the Arts
   c. The percentage plan used in California, Florida, and Texas
   d. A lottery among all qualified candidates


2. In your opinion, would the admissions program at Michigan’s College of
   Literature, Science, and the Arts be unconstitutional if, instead of twenty
   points, it awarded only five points to members of underrepresented minor-
   ity groups? What if it awarded fifty points? Does the number of points mat-
   ter at all? Why or why not?


3. Much of the debate between Justices Rehnquist and Souter in Gratz con-
   cerns whether applicants receive “individualized consideration.” What ex-
   actly does this mean? Why is it important in this context?


4. What are the implications of Grutter and Gratz for admissions policies in
   private colleges and universities? For preferential treatment in hiring? In
   government contracts?


5. Find out what kinds of preferential treatment programs exist in your own
   school or town, and then argue either that these programs are constitutional
   or that they are not.

Discussion Questions

* Of course it might be pointless in the State of Michigan, where minorities are a much smaller

fraction of the population than in California, Florida, or Texas.

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