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Another Swing at Affirmative Action

June 6, 2006

The U.S. Supreme Court decided Monday to hear a pair of cases dealing with the use of affirmative action in the public schools, which higher education legal experts agreed could give a newly configured (and more conservative) court the chance to review its 2003 ruling in two University of Michigan cases that allowed colleges to consider race in admitting students.

Lawyers with a range of perspectives on whether the Michigan cases were correctly decided agreed Monday that the Supreme Court is unlikely to significantly undermine its 2003 ruling when the court takes up the elementary and secondary school cases in the term that begins next fall.

But they also agreed that a court from which Justice Sandra Day O'Connor, who wrote the Michigan decision, has departed and that includes two new members who are thought to be skeptics of affirmative action could use the cases to directly or indirectly alter the court's stance. (Justice Samuel A. Alito Jr. has opposed racial preferences in the past, although he has not ruled in cases with a direct link to higher education; Chief Justice John G. Roberts Jr. is widely seen as a conservative, although as a lawyer in private practice, he was involved in discussions about amicus briefs college groups filed in support of the University of Michigan.)

"It opens the issue and it becomes possible, though not necessarily likely, that either by breadth of language or through dicta, that the case could have implications for institutions of higher education," said Sheldon E. Steinbach, vice president and general counsel at the American Council on Education.

The Supreme Court's 2003 decisions in Grutter v. Bollinger, which upheld the admissions policy used in Michigan's law school, and Gratz v. Bollinger, which struck down the policy used in Michigan's main undergraduate college, upheld the constitutionality of colleges' considering race in admitting students, but also set boundaries for its use. Since then, opponents of affirmative action have sought to use other federal court cases to narrow the definition of what practices are allowable, and which aren’t, under the legal standards the Supreme Court laid out in its Michigan rulings.

The cases that the Supreme Court agreed on Monday to hear, Parents Involved v. Seattle School District ( 05-908) and Meredith v. Jefferson City Board of Education (05-915), have nothing to do with higher education. Both cases involve efforts by school districts to diversify their student bodies by taking race into account in deciding where to assign students. In both cases (and a third, decided by the U.S. Court of Appeals for the First Circuit involving a school district in Lynn, Mass.), federal appeals courts sided with the school districts, in part based on the Supreme Court's rulings in the Michigan cases. (In two of the three cases, those involving the Seattle and Massachusetts districts, the rulings were made by the full appeals courts ruling "en banc," after three-judge panels had sided with those who challenged the policies.)

But the fact that the three appeals courts all ultimately came out on the same side of the issue could bode badly for supporters of affirmative action. The Supreme Court is likeliest to agree to hear cases when it has the chance to resolve a split of opinion among the federal districts, so the justices' decision to take the two affirmative action cases, which reached the same outcome, may suggest that they were itching to revisit the issue of race and education.

The two K-12 cases that the court has decided to review differ markedly from higher education cases. First, while the justices leaned heavily on academic freedom and other First Amendment concerns in supporting the continued use of race in the Michigan cases, courts have not typically granted such consideration at the elementary and secondary level. Second, Michigan (and the many higher education groups and other colleges that rallied to its defense) also justified the use of racial preferences in admissions by citing the educational and other benefits that accrue to all students at an institution when students with many different viewpoints are represented. That issue was not raised in the public school cases.

Given the differences in the contexts, there is no reason that the Supreme Court's decision to hear the K-12 cases should threaten the legal status of affirmative action in higher education at all, said Victor A. Bolden, general counsel at the NAACP Legal Defense and Education Fund. "What's at stake here should be the application of Grutter and Gratz to the K-12 context, rather than some wholesale review of those decisions," he said.

Roger Clegg, president and general counsel of the Center for Equal Opportunity, which has repeatedly challenged the use of racial preferences in the courts and elsewhere, generally agreed with the view that a Supreme Court ruling in the Seattle and Louisville cases would not directly undermine the viability of the Michigan ruling in higher education. But the case "will provide some opportunity to see whether Roberts and Alito, in particular, like the Grutter and Gratz decisions," he said.

"Justices can certainly signal their skepticism about those decisions by how broadly they interpret them. It would be possible for the court to say that racial and ethnic preferences are subjected to the strictest of scrutiny, and that we're willing to defer to the expertise of university administrators in the higher education context where there are First Amendment concerns, but are unwilling to extend it beyond the narrow facts in those cases," Clegg said.

"That could signal that the court is not wild about these decisions. On the other hand, a decision that upheld the K-12 student assignments would be an extension of Grutter and Gratz, and it might be fairly well concluded that they might be happy to let those decisions alone."

 

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