October 16, 2012
For those of you not already exposed to the media coverage of the case, Fisher is widely expected to be the next landmark Supreme Court ruling on affirmative action.
I’ve already written a few posts on the subject – two posts kind of predicting how the Court will rule, and another with a condensed history of race-based factors in school admissions policies before the Supreme Court.
In case you don’t feel like reading through those posts, I’ll give a quick and dirty summary.
In 1977’s Regents of the University of California v. Bakke, the Court ruled that schools may take race into consideration in the admissions process, but they may not enforce “quotas” that reserve a certain number of seats for certain racial demographics.
2003’s Grutter v. Bollinger largely upheld Bakke, finding that, while quotas are unconstitutional, that schools have “a compelling interest in attaining a diverse student body” and that the admissions program in question “was narrowly tailored to serve its compelling interest.”
University of Texas instituted an admissions program virtually identical to that approved by the Court in Grutter.
That program is facing the current legal challenge in Fisher.
Thus, Fisher really is a reconsideration of the Grutter ruling.
As I’ve already written, because the ideological makeup of the Court has changed sufficiently since Grutter, the ruling seems unlikely to survive Fisher.
There will only be three Justices certain to uphold Grutter (Breyer, Ginsburg, and Sotomayor), and four almost certain to overrule it (Scalia, Roberts, Kennedy, and Alito – see this post for an explanation).
Justice Kagan has recused herself, which diminishes Grutter’s chances of survival all the more.
The Chief Justice can be something of a question mark, but considering his perfect streak of overruling previous compromise opinions forged by Sandra Day O’Connor, I doubt he will want to ruin his record with Fisher.
So, before oral arguments, I was predicting a 5-3 ruling against Grutter (and race-based factors in school admissions).
Have the oral arguments changed my opinion? Not really.
If anything, they’ve only reinforced it.
For instance, in response to the question of standing – specifically, whether Fisher was even harmed by the use of race in the admissions policy since she wouldn’t have been admitted to the school in the absence of such factors – Justice Scalia argued that her paying “an admissions fee for a process in which she was not treated fairly” was injury enough for standing.
Putting aside any discussion of whether this logic makes any sense, it illustrates Scalia’s view that race factors are unfair.
Justice Kennedy, whom many view as a potential swing vote, revealed his opinion of how race-based factors operate – using race as a “tie-breaker” – a view that echoes sentiments espoused by ideological opponents of any form of affirmative action.
Again, leaving aside any discussion of the merits of this logic, Kennedy’s belief here demonstrates a view similar to Scalia’s: that the use of race in admissions decisions is inherently unfair.
What about Chief Justice Roberts?
His comments didn’t as explicitly divulge his views as those of his colleagues did.
Nevertheless, he said enough, in that he kept comparing “critical mass” – the number of students of a certain demographic in the student body so that the demographic is no longer underrepresented – to a quota system.
The Chief Justice’s questions and comments made me think that this is the logic that the majority opinion will espouse in its holding reversing the court of appeals: that the use of race-based factors in admissions for the purpose of “attaining a diverse student body” is effectively a quota system – and is thus unconstitutional under Bakke.
And that’s my final verdict: 5-3 for reversing the court of appeals (farewell, Grutter).
Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.
Lower Court’s Decision
REVERSE 5-3 (Majority: Roberts, Alito, Kennedy, Scalia, and Thomas; Dissent: Ginsburg, Breyer, and Sotomayor; Recuse: Kagan).
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