A More Conservative High Court Prepares to Consider Affirmative Action Case

February 21, 2012

by Jeremy Leaming

The U.S. Supreme Court’s conservative majority is seemingly preparing to provide a potentially fatal blow to affirmative action policy. After the high court announced earlier today that it would consider Fisher v. Texas, a white college student’s challenge to the University of Texas’ affirmative action policy, The Huffington Post’s Mike Sacks wrote, that affirmative action was heading back to the high court “and this time its prospects for survival are poorer than ever.”

As Sacks notes, in 2003 the Supreme Court upheld by a 5-4 vote in Grutter v. Bollinger that the University of Michigan law school’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”

The lower federal court in the Grutter case found Michigan’s use of race as a factor in admissions was unconstitutional. The federal appeals court, however, overruled that opinion.

Retired Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in Grutter. She noted that part of the reason Michigan used race as a factor in higher education admissions policies was to create a richer educational experience. She said the majority would defer to the school’s “educational mission.” O’Connor noted that the briefs supporting the school “substantiated” the “educational benefits” of its affirmative action policy. Those friend-of-the-court briefs, O’Connor wrote included “expert studies and reports entered into evidence at trial,” and “numerous studies show[ing] that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”

O’Connor, moreover, said the law school had not employed a rigid quota system in trying to achieve its goal of bringing underrepresented minorities into the fold. “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” she wrote.

Nonetheless, O’Connor said similar affirmative action policies could not last forever. She maintained that a primary purpose of the “Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race. Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling in their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.” She said that the majority expected that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Twenty-five years, of course, has not passed, but a more conservative Supreme Court has emerged with another opportunity to overturn precedent. Erwin Chemerinsky, a constitutional law expert and dean of the University of California, Irvine, as noted by The New York Times’ Adam Liptak wrote recently that, “There thus seem five votes – Roberts, Scalia, Kennedy, Thomas and Alito – to overrule Grutter and hold that affirmative action programs are unconstitutional.”

Liptak’s piece notes that Justice Anthony Kennedy, considered by many court-watchers to be the high court’s swing justice, “has never voted to uphold an affirmative action program.”

So, Sacks’ contention that the survival of affirmative action policy looks wobbly appears, unfortunately, well-grounded.