© Fred R. Conrad/The New York Times
by: Adam Petrun, 3L Contributor
The United States Supreme Court is poised this term to evaluate what is arguably the most significant issue facing the Court since its groundbreaking case of National Federation of Independent Business v. Sebelius handed down this past July. In Fisher v. University of Texas, the Supreme Court will determine the validity of its prior precedent set forth in Grutter v. Bollinger, and whether the practice of affirmative action can continue to be used by colleges and universities in determining admissions. Here are some essential points underlying the Court’s upcoming decision.
1. The Court’s Prior Precedent in Grutter v. Bollinger
In Grutter, the Supreme Court affirmed the constitutionality of a race-conscious “plus” system of university admissions. Under this holding, race may be considered as a factor in creating a “critical mass” of underrepresented minority students in order to prevent feelings of isolation and create a classroom composed of students with diverse academic perspectives.
In that case, however, the Supreme Court also noted that such policies must be limited in time. This temporal limitation served as a safeguard to prevent long-term, adverse effects of such admissions practices. At issue in Fisher is whether this hourglass has run out a mere nine years after Grutter.
2. The Dissent’s Harsh Criticism of “Critical Mass” in Grutter
Four Justices in Grutter lamented the concept of “critical mass” representation, and would have struck down this type of admissions scheme in that decision altogether:
Justice Scalia stated that “critical mass” is “a sham to cover a scheme of racially proportionate admissions.” He opined that by giving such unprecedented deference to colleges and universities, there would be no meaningful judicial oversight or discernible standard by which to judge admissions criteria.
Other members of the Court, such as Justice Thomas, questioned whether the practice of affirmative action was even useful at all to meet a compelling state interest.
Chief Justice Rehnquist condemned “critical mass” by pointing to empirical statistical evidence that this goal actually was a cover for constitutionally impermissible racial balancing.
Similarly Justice Kennedy objected to the wide deference accorded to colleges and universities under this standard, and argued that a time-limited “self-destruct mechanism” did little to alleviate the unconstitutional nature of attaining “critical mass” in the present-day.
3. The Subsequent Changes to the Composition of the Supreme Court
Following Grutter, those four dissenting justices now find themselves in the majority (due to the appointment of Justice Alito), and now hold the bargaining chips in the Court’s decision in Fisher, in part because Justice Kagan (likely to support continuing validity of Grutter) has recused herself from presiding over the case. Because Justices Scalia, Thomas, Alito, Kennedy and Chief Justice Roberts have all previously voiced some displeasure either with the Court’s opinion in Grutter itself or the practice of affirmative action in general, the deck is now stacked against upholding the practice by a majority of the Court.
4. The Brief Background of Fisher
In 1997, the Texas legislature passed the (facially) race-neutral so-called “Top Ten Percent Law” (TTPL) to the eponymous effect that the top 10 percent of Texas high schools’ graduates essentially were guaranteed admission to a state university.
The clear legislative intent of the TTPL, however, was to increase minority enrollment, despite the law’s facial race-neutrality. Following Grutter in 2003, the state blew its own cover and began openly using affirmative action in order to achieve “critical mass,” in conjunction with the TTPL. In conformity with Grutter, the state vowed to use race only for a limited time and periodically review its admissions goals.
The plaintiffs in Fisher are both white, non-minority residents of Texas who unsuccessfully sought admission to the University of Texas at Austin. The plaintiffs attacked the TTPL as an unconstitutional application of Grutter, namely because under the TTPL, space at Texas colleges and universities became significantly more competitive, often to the exclusion of highly qualified out-of-state or non-minority applicants.
Despite these negative impacts of the TTPL, the Sixth Circuit in Fisher upheld the law’s constitutionality. However, the Sixth Circuit sharply criticized the undesirable expense of admitting more minority applicants to the detriment of other qualified students under the TTPL, and appeared to question whether the rationale of Grutter still remains valid in modern society.
5. What Likely Will Happen in Fisher, and to Affirmative Action?
The likely majority composed of Kennedy, Scalia, Thomas, Alito and Roberts probably will strike down the TTPL, due to their prior (and open) disdain for “critical mass” admissions schemes. But the more important questions are: (1) the reasoning for doing so (perhaps enforcing the time limitation in Grutter); and (2) whether the Court will overrule Grutter entirely only nine years after that decision.
Even in the worst-case scenario for proponents of affirmative action, and if the Supreme Court in Fisher decides to overrule its precedent in Grutter, the practice of affirmative action as a whole probably will still survive.
As the Court has previously recognized in Grutter, there is a distinct difference in the body of jurisprudence of educational affirmative action and other lines of precedent that has authorized the practice in other ways. For example, the practice of affirmative action in granting government or state contracts, or in hiring practices generally relies upon different reasoning.
In educational settings, as in Grutter, race is used as a means through which to provide diverse classroom perspectives, and enhance the educational benefits of other students. These educational benefits, based on viewpoint differences of minority students, were the state goals endorsed in the likes of Grutter.
This is a discrete usage of race as compared to other means of affirmative action, which may be necessary in order to rectify (for example) past instances of discrimination or prior abusive hiring practices. In such other situations, affirmative action is premised upon a different state goal: mending the wounds of prior racial discrimination, as a corrective measure.
In other words, affirmative action in educational admissions and affirmative action in other contexts are based on different premises, with different goals. Thus, even if the Supreme Court repudiates affirmative action as applied to educational settings (as in Fisher), its usage in other settings logically should remain undisturbed.
As the United States Supreme Court hears oral arguments in Fisher and deliberates on this most closely watched of decisions, all of these issues are pertinent to the Court’s forthcoming opinion and, more importantly, the rationale for its decision.
Adam Petrun is a guest contributor for JURIS. He earned his undergraduate degree from Duquesne University in 2010, where he majored in Political Science and Sociology, with a concentration in Criminal Justice. He is an associate editor of the Duquesne Law Review, and has recently authored a law review comment on the Supreme Court’s upcoming decision in Fisher v. University of Texas, in particular examining the historical background behind that case. Adam will graduate from the Duquesne University School of Law in June 2013, and currently is a law clerk for Swensen Perer & Kontos, P.C. in Pittsburgh. He can be reached at petruna@duq.edu.
