Law & School: Will respect for legal precedent save affirmative action?

August 15, 2012

School Law

(Editor’s note: With August being the “back to school” month for everyone from preschoolers to law students, we’ll be looking at recent important developments in education law throughout the month.)

You can read the first week’s post about the unconstitutional high school graduation practices in church here.

You can read the second week’s post about the legal liability for school bullying here.

Back in February, I wrote a post about the Supreme Court’s granting of certiorari to Fisher v. University of Texas at Austin.

The case is a challenge to the University of Texas’ (UT) admissions policy, which incorporates some race-based factors, and it’s being brought by Abigail Fisher, a white applicant rejected from the University.

My last post about this has a much more detailed factual synopsis, but UT’s admissions policy almost identically mirrors those set out and approved in the Supreme Court’s 2003 decision Grutter v. Bollinger.

UT’s admissions policy was upheld by the court of appeals, which considering how closely the policy was tailored to match Grutter’s, that should come as no surprise.

In spite of the appeals court’s compliance with Supreme Court precedent, the Supreme Court granted Fisher’s petition for certiorari.

This fact alone has many observers predicting that the Court will overturn Grutter and rule all race-based admissions policies unconstitutional.

I actually looked at this possibility in my February post, and I came to largely the same conclusion.


Because Grutter’s majority is down from five Justices to three.

Justice Sandra Day O’Connor retired, and her replacement – Justice Samuel Alito – will almost certainly vote to strike down Grutter.

And although Justices Stevens and Souter were replaced with Justices very likely to support Grutter, Justice Elena Kagan – Stevens’ replacement – recused herself.

Thus, conventional wisdom seems to suggest that the Court will strike down Grutter.

However, there is no “conventional wisdom” when it comes to the Supreme Court.

Case in point: National Federation of Independent Business v. Sebelius (the health care ruling).

Especially after March’s oral arguments, everyone assumed that the Court would strike down the individual mandate; it didn’t.

Chief Justice Roberts provided the swing vote to uphold it then, and he may provide the swing vote to save Grutter in the upcoming Fisher.

Except that his vote to uphold Grutter would create a 4-4 split.

Enter: Arizona v. U.S.

In Arizona, Justice Kagan also recused herself, and Justice Kennedy and Chief Justice Roberts sided with the liberal Justices to strike down Arizona’s immigration reforms – a result that was, again, unexpected after March’s oral arguments.

Of course, the areas of law at issue in Arizona were far more settled than those in Fisher, which deals with an issue that has been extremely contentious with certain groups since its inception.

More likely than not, then, the Court will strike down Grutter, despite its young age of only nine years.

Then again, the decision’s youth could be what sways Roberts and Kennedy toward upholding, or at least salvaging a good portion of it.

So it looks like no one will know for sure how Fisher will come down until the Supreme Court announces the decision next year.

In the meantime, dozens of amicus briefs have been and will continue to be filed in support of both sides – with conservative and anti-affirmative action groups behind Fisher, and the U.S. government, colleges (both private and public), minority advocacy groups, and civil rights organizations behind UT.

Nevertheless, the case is not truly about whether affirmative action policies are constitutional.

Rather, in light of Grutter’s young age, Fisher is a battle for supremacy between legal precedent and political ideology.