TEXAS SUPREME COURT HISTORICAL SOCIETY

argued, “MUW’s policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotypedview of nursing as an exclusively woman’s job.” 8 It was her position that the addition of men to the student body wouldhelp remove the female stereotype attached to the profession and the accompanying lower wages paid women.In Hogan, she was not examining how many men were to be admitted; that determination had been madeby the Mississippi state legislature when it passed the statute establishing MUW as a women-only university.Hence, there was no need to dissect the state’s policy as it was stated and applied. Rather, the “scrutiny” wason the university’s very reason for existence, i.e. education reserved exclusively for women. O’Connor foundthe school’s discrimination against men unconstitutional: “we conclude that the State has fallen far short ofestablishing the ‘exceedingly persuasive justification’ needed to sustain the gender-based classification.” 9In Grutter v. Bollinger, 10 Justice O’Connor considered the case brought by an applicant to the Universityof Michigan Law School who was denied admission, while other, arguably less academically qualified, but morediverse, applicants were admitted. The law school evaluated applicants under a policy that considered factorsbeyond GPA and LSAT scores in an attempt to obtain a diverse student body who could provide the educationalbenefits of diversity. The “plus” factors that the law school considered were not limited to race and ethnicity, butincluded applicants who had lived or traveled widely abroad, were fluent in several languages, had overcomepersonal adversity and family hardship, had exceptional records of community service, or had successful careers. 11The goal of the diversity admissions program was to admit students who would make a notable contribution to theclass through a particular strength, attainment, or characteristic. 12After considering the operation of the law school’s program in depth, Justice O’Connor found that theschool’s narrowly tailored use of race in admissions furthered the compelling interest of obtaining the educationalbenefits that flow from a diverse student body. 13Justice O’Connor’s Nomination Itself Would Meet the Grutter TestLike the “diverse” student applicants, Sandra Day O’Connor was an affirmative action nominee. President Reagannominated her because he had promised to nominate a woman to the Supreme Court and she was a woman. But howwould she have fared under the criteria set out in Grutter? What did she bring to the Court? What were the “plus” factors?First, she is a woman, a member of a class historically discriminated against (by virtue of their total absence)on the Supreme Court.Second, she is a Republican and had been active in the party for a number of years before her nomination.Third, she graduated third in her law school class, was on the Stanford law review, and was a member ofthe Order of the Coif.Fourth, she had been a classmate and friend of U.S. Supreme Court Chief Justice William Rehnquist whilein law school.8Id. at 730.9Id. at 718.10539 U.S. 306 (2003).11Id. at 338.12Id.13Id. at 343.94