THE WEEKEND INTERVIEW
The Woman Who Fought Racial Preference
Jennifer Gratz felt as if she had lost her case at the Supreme Court 10 years ago. But this week she sees vindication, with more to come next year.
BY JAMES TARANTO
The Wall Street Journal, June 29, 2013
NEW YORK--Jennifer Gratz's legal battle had dragged on for 5½ years when it ended in 2003 with a 6-3 U.S. Supreme Court ruling in her favor. She tells me she felt as if she'd "been kicked in the gut."
If that seems an unusual reaction to a victory, it's because the circumstances made it Pyrrhic. Ms. Gratz, then 25, had sued to challenge the University of Michigan's racially discriminatory admissions policies, under which the prestigious Ann Arbor campus had turned her away. Her case was paired with that of a prospective law student, Barbara Grutter. Ms. Grutter lost her case 5-4 as Justice Sandra Day O'Connor, joined by Stephen Breyer, switched sides. Grutter v. Bollinger gave universities the green light to continue practicing racial discrimination in the name of "diversity."
Ten years and one day later, Justice Anthony Kennedy turned the light yellow. On Monday, his opinion for a 7-1 majority in Fisher v. University of Texas overturned a lower court's decision approving the Texas racial preferences without a trial.
The justices reaffirmed Grutter's holding that "diversity" could justify some use of racial preferences. They declared, however, that henceforth courts must take seriously the command to apply "strict scrutiny" to racial preferences, upholding them only if "no workable race-neutral alternatives" are available.
Some advocates are unhappy with this half-a-loaf result. Not Ms. Gratz, who says it is now "very clear that the court barely tolerates race preferences."
The daughter of a policeman and a secretary, Jennifer Gratz was born in 1977 and grew up in Southfield, Mich., a Detroit suburb. She excelled at math and science, and her teachers encouraged her to set her sights on Ann Arbor.
"In eighth and ninth grade, I was thinking about my college application," she says. To improve her admission profile, "I was a cheerleader; I was baseball team statistician; I was National Honors Society; I was our class vice president, student council; I organized a senior-citizen prom; I organized blood drives; coached cheerleading."
She had "decent" grades and test scores. But "through high school, I had heard rumors that the University of Michigan treated people differently based on race." That struck her as a "crazy" idea: "I remember thinking . . . there's no way that the University of Michigan, [which] surely teaches on their campus to treat people without regard to race, actually does just the opposite."
But when she applied, she was wait-listed while less-qualified nonwhite classmates were accepted. In April 1995, she received a thin envelope containing her rejection. Humiliated, she withheld the news from her boyfriend and other friends, telling only her parents. She had aspired to become a physician but was racked with self-doubt: "If I'm not qualified to go to the University of Michigan, then am I really qualified to become a doctor?"
She enrolled instead at Michigan's less-selective Dearborn campus, majoring in math. During the summer of 1997, Ms. Gratz heard about the Center for Individual Rights, a group planning to challenge the university's use of racial preferences. She became the lead plaintiff in a lawsuit filed that December.
Suddenly this shy young woman was a mini-celebrity. "Every single day of the week, I did some sort of media interview. . . . I had media following me . . . asking my professors if they could come in and observe me in class to make that part of their story." The distractions notwithstanding, she finished school in four years.
In 2000, she appeared on CBS's "60 Minutes." She tells me of an exchange with the late correspondent Ed Bradley that wasn't aired:
"He said: 'Yesterday, I was on the University of Michigan's campus, and I met with a student who's graduating next week. . . . He would describe his situation growing up as being less than poor. He grew up in Detroit. He had five brothers and sisters, each from a different father. His mother was an addict. He worked all through high school. He doesn't remember what his ACT score was. He thinks he maybe had a 3.0 GPA. And yet now he's graduating Phi Beta Kappa from the University of Michigan and going on to law school. What would you say to that student?'
"And I looked at him, and I said, 'Well, you never mentioned his race, so what does that matter?' . . . You could just see his jaw drop." From then on, she says, it was "a very nice interview."
Bradley's uplifting parable was a typical mainstream defense of "affirmative action," but Ms. Gratz discovered that the policy's proponents had a hateful side as well. That became clear in 2001, when she traveled to Cincinnati to attend an oral argument of her case at the Sixth U.S. Circuit Court of Appeals.
Circuit-court oral arguments are normally low-profile affairs, but the subject of racial preferences had generated such wide interest that the court required that observers have tickets to attend. A Detroit-based outfit with the unwieldy name Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary--BAMN for short--"bused a ton of kids" from Michigan and gave them counterfeit tickets.
When Ms. Gratz and Barbara Grutter left the hearing, they found themselves surrounded by "all these screaming kids." Ms. Gratz feared for her safety when she heard someone shout: "Racist bitch!" On the way to her hotel, she stopped to talk to a TV reporter. A BAMN member stood behind the camera, she says, and lifted his sweatshirt to reveal a holstered gun.
BAMN also showed up in Washington in April 2003, when the U.S. Supreme Court heard oral arguments in Grutter and Gratz. Ms. Gratz had a ticket, courtesy of her lawyers, but her family--husband, parents and younger brother--had to camp out for two nights to beat the crowd. Her brother "talks to this day about seeing the BAMN group walking around with these long sticks with these dolls on nooses--white girls, with [Ms. Gratz's and Ms. Grutter's] names scrawled across them. . . . They bused in elementary-school kids, and this is what they're teaching them."
The day the court heard the arguments, "there were tens of thousands of people. Streets were shut down. . . . You could hear the protests in the court. And in fact, if I remember correctly, there was a point where the chief justice paused for a second . . . and acknowledged what was going on outside, because it was so loud."
Even after the Supreme Court setback, Ms. Gratz wasn't ready to give up. At the high court she had met Ward Connerly, the California activist behind Proposition 209, the 1996 ballot initiative that banned discrimination by governmental entities, including the University of California.
Michigan also allows citizen initiatives, and Ms. Gratz saw an opportunity. In July 2003 she told her husband of six months, with whom she was living in San Diego: '' 'I'm quitting my job, and I'm moving back to Michigan. And I know you can't move to Michigan, so we're going to have to figure out how we can make this work.' . . . He looks at me like: 'We're married. You can't do this!' He knows me well enough to know that I was doing this." In January 2004 "he drove me across the country with a bunch of my belongings, and I moved back to Michigan."
She ended up spending three years in Michigan, returning to San Diego for two or three days a month. BAMN didn't give up either; the group filed a series of lawsuits aimed at keeping the initiative off the ballot. That delayed its certification until 2006, when voters approved the Michigan Civil Rights Initiative, also known as Proposal 2, by a 58% to 42% vote. Ms. Gratz's marriage survived the adversity of distance; the couple now live in Florida.
But two years ago BAMN won a favorable ruling from the Sixth Circuit, which held that because racial preferences were designed to benefit minorities, repealing them by majority vote violated equal protection. Never mind that the initiative mandates equal treatment, or that the Supreme Court had approved preferences in college admissions only for the purpose of promoting a diverse student body.
Michigan Attorney General Bill Schuette appealed, and this March the Supreme Court agreed to take the case. Sometime next fall the justices will again consider racial preferences at the University of Michigan. Ms. Gratz is not a party to the case, but on July 1 the organization she heads, the XIV Foundation, will file a friend-of-the-court brief. This time Ms. Gratz and the state of Michigan are on the same side.
"I think we'll win," she says. Fisher is a step in the right direction, but even in Grutter, which upheld racial preferences, the majority urged "sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary." And in November 2006, just after Proposal 2 passed, the retired Justice O'Connor said publicly that abolishing racial preferences was "entirely within the right and privilege of voters."
On Tuesday, a few hours before Ms. Gratz and I met, there was more good news from the high court. In Shelby County v. Holder, the justices struck down a section of the Voting Rights Act that held certain states and localities to a higher standard, based on patterns of discrimination 40-plus years ago. Says Ms. Gratz: "They've recognized that the landscape has changed, the dynamic in this country has changed, and it's time to move on."
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