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.
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| Abigail Fisher, 22, stands in the Great Hallway of the U.S. Supreme Court. © Fred R. Conrad/The New York Times |
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.
