2003 + 25 = 2012?

In 2003, the United States Supreme Court decided the two University of Michigan Affirmative Action cases, Grutter v Bollinger, 539 U.S. 306 (2003) and Gratz v Bollinger, 539 U.S. 244 (2003) . In those cases, the Justices split hairs very neatly, declaring, in Gratz, that hard numerical quotas for minority admission to a state-supported university was an unconstitutional violation of the equal protection clause of the Fourteenth Amendment. However, in Grutter, the Court allowed, by a 5-4 decision,1 the University of Michigan’s Law School to consider race in its admissions decisions, because it was not set down as a numerical quota, and the Court decided that the policy was narrowly tailored to meet a compelling state interest in securing diversity in the student body of the Law School. Justice O’Connor concluded by noting that the majority were still quite concerned about this subordination of the individual right to equal protection of the laws by stating:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Today, the Supreme Court granted certiorari in Fisher v University of Texas at Austin, a case which could well reassess Grutter.


Supreme Court Agrees to Hear Affirmative Action Case


By ADAM LIPTAK
Published: February 21, 2012

WASHINGTON — The Supreme Court on Tuesday agreed to hear a major case on affirmative action in higher education, adding another potential blockbuster to a docket already studded with them.

The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer way to ensure academic diversity.

Much more at the link. The New York Times story noted that the membership on the Court has changed since 2003, with the most notable change being that Associate Justice Samuel Alito has replaced Justice O’Connor. Granting certiorari requires the affirmative votes of four Justices, and Associate Justice Elena Kagan recused herself from both the case and the decision to grant certiorari, due to her involvement with the case when she was Solicitor General.2 Since the case on appeal from the Fifth Circuit Court of Appeals was in favor of the University of Texas, there is little reason to suppose that the four Justices who wished to take this case were inclined to uphold Grutter; denial of certiorari would have let the Fifth Circuit’s ruling stand.

There are grounds on which Miss Fisher could win her case, and still not overturn Grutter. After losing initially in a smaller panel, Miss Fisher filed for an en banc3 rehearing by the Fifth Circuit, which was denied 9-7. One of the opinions by the dissenting judges concerned about the way in which the University applied the Grutter test, and whether it met the ceriteria for being narrowly tailored. It would seem unusual, however, to think that four Justices would have voted to grant certiorari on a case in which they just wished to examine how narrowly tailored the University’s policies concerning the consideration of race were, as opposed to the constitutional issue itself.

In addition, Miss Fisher’s case would seem to have serious issues concerning her standing to sue: she is on course to be graduated from Louisiana State University at the end of this semester, and by not filing this as a class action suit, her case is very nearly moot. The case is scheduled to be heard not this spring, but in the October 2012 session of the Court, by which time Miss Fisher should have been graduated. This would actually seem to be not the strongest case on which a reversal of Grutter could be based, because it could be decided on lesser issues and still leave Grutter intact. Unless the Chief Justice and Associate Justices Alito, Clarence Thomas and Antonin Scalia believed that there was a strong possibility that Associate Justice Anthony Kennedy, a noted hair-splitter himself, though one of the minority in Grutter, would go along with a reversal of Grutter, it would seem that voting to grant certiorari would be an exercise in futility.
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  1. Both decisions were 5-4, with Associate Justice Sandra O’Connor as the swing vote; Justice O’Connor wrote the majority opinion in Grutter.
  2. Justice Kagan’s recusal does not necessarily the Affirmative Action “side” of this case; if the case results in a 4-4 tie, the judgement of the Fifth Circuit would be upheld.
  3. An en banc review is one by the entire Court of a decision made by a smaller panel.

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