February 22, 2012
(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history. Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)
For the first week’s post on Texas’s redistricting lawsuit, click here.
For the second week’s post on Shelby County, Alabama’s constitutional challenge to Section 5, click here.
For the third week’s post on Texas’s colorblindness, click here.
When the Supreme Court agrees to hear a case that is similar to one it has ruled on in the past, the newer case is typically viewed with anticipation as a revisiting by the Court of that earlier case.
Although the Supreme Court just granted certiorari to Fisher yesterday, the case is already being widely touted as a challenge to Grutter.
And Fisher actually lives up to the hype of being a re-examination of Grutter.
For those not intimately familiar with Supreme Court jurisprudence on the issue, Grutter is the most recent Supreme Court decision on the constitutionality of affirmative action in higher education admissions policies.
The details of that case are more fittingly examined in the context of the details of Fisher’s.
To understand Fisher, we first have to look at the recent history of the admissions policies at the University of Texas (UT), the policies being challenged.
UT had “race-conscious admissions” policies until 1996, when the Fifth Circuit Court of Appeals ruled in Hopwood v. Texas that the use of race-based criteria in admissions decisions at UT’s law school was unconstitutional.
In 1997, the Texas legislature responded to the Hopwood decision by enacting the Top Ten Percent Law, which is still in effect.
The law mandated that Texas high school seniors in the top 10% of their class be automatically admitted to any Texas state university.
Although it succeeded in increasing minority percentages at UT, the law only stimulated modest such growth at best.
Hopwood‘s prohibitions ended with the Supreme Court’s 2003 decision in Grutter.
In August 2003, before adopting any kind of race-based admissions policy, the UT Board of Regents authorized the institutions within the University of Texas system to examine “whether to consider an applicant’s race and ethnicity” in admissions “in accordance with the standards enunciated in” Grutter.
UT commissioned two extensive studies to this end, and the findings of these studies were used in a proposal to consider race and ethnicity in admissions, citing extensive benefits resulting from doing so.
UT adopted the proposal, and made race one of many factors considered in admissions (at least, the admissions of the remaining 19% of UT spots after the Top Ten Percent law), and these changes spurred “noticeable results” in student body diversity.
I kind of glazed over some of the details, but the important point to take away here is that UT followed Grutter very closely in implementing race factors in its admissions process.
In fact, the district court found that “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter,” and “as long as Grutter remains good law, UT’s current admissions program remains constitutional.”
The appeals court completely agreed.
So if this case is exactly like Grutter, why is everyone wondering how it will turn out?
Grutter was narrowly decided 5-4, with O’Connor, Stevens, Souter, Ginsburg, and Breyer in the majority, and Chief Justice Rehnquist, Scalia, Kennedy, and Thomas dissenting.
Now, O’Connor has been replaced by Alito, who has a much different view of affirmative action.
In the last two cases on the topic – 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 and 2009’s Ricci v. DeStefano – Alito was firmly against affirmative action.
Moreover, Kagan has, in her ongoing mission to show the rest of the Court how to do even less work than it does already, recused herself once again (the United States filed an amicus brief in support of UT in March 2010, before Kagan left her position as Solicitor General).
Thus, we’re left with three Justices who are almost certain to uphold Grutter, and four who are almost certain to overturn it.
Chief Justice Roberts can be somewhat difficult to predict, but it’s more likely than not that he’ll side with Grutter’s opponents.
Hence, here we have a 5-3 ruling that could go one of two ways: either Grutter is overruled explicitly, or the majority finds some alternate grounds to rule against UT’s admission policy that doesn’t overturn Grutter outright but effectively defangs it.
Either way, Grutter – along with the use of race-based factors in higher education admissions – will be finished.
This result will once again demonstrate that Supreme Court precedent interpreting the Constitution is only controlling as long as the ideologies of the sitting Court will it so.