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The End of Grutter?

[ 24 ] February 22, 2012 |

I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly, four of the necessary votes are not in question:

The bad news is that Kagan’s recusal probably doesn’t matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the “originalism” they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts’s Young Republican debate society koan “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.

So this leaves us with Kennedy, who as Liptak notes, “has never voted to uphold an affirmative action program.” So I think we know where this is headed.

I think this is a good time to cite Stevens in Parents Involved:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude…

[...]

If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.”

Admittedly, I don’t agree with the vote-counting at the end of Stevens’s dissent (“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”) After all, William “Plessy was right and should be reaffirmed” Rehnquist was on the Court then, and he’s always been at the forefront of tying to stand Brown on its head. But, otherwise, Stevens is right. Alas, on a Court dominated by Republicans the silly idea that as soon as a centuries-old caste system is formally disbanded formal equality is sufficient to provide real equality of opportunity will hold sway.

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  1. joe from Lowell says:

    This sucks. I hate it. Conservative judges are scum.

    OK, now what?

    I suggest that the way to go forward is to design affirmative action programs that are not explicitly about race, but which use poverty and geography as proxies.

    • Steve LaBonne says:

      I expect them to kill that, too, in due course. We’re pretty well fucked by this Court.

    • MAJeff says:

      One of the issues, though, with class-based affirmative action is that it will likely result in a decrease in the number of African Americans in selective universities. There are just a lot more poor white folks so the application pool will be “diluted,” resulting in an increasingly white student body.

      • joe from Lowell says:

        I didn’t say I liked it.

      • Honorable.Bob says:

        One of the issues, though, with class-based affirmative action is that it will likely result in a decrease in the number of African Americans in selective universities. There are just a lot more poor white folks so the application pool will be “diluted,” resulting in an increasingly white student body.

        Class-based would seem to be a more efficient means of giving a leg up to those in need and not wasting slots on wealthier minorities.

        So why’s there a problem with class-based? Is it just a war on White People?

        • joe from Lowell says:

          It’s the desegregation, stupid.

          I know it’s a foreign concept to the likes of you, but many institutions actually believe that diversity is a good thing, which brings benefits to the school.

          Providing a leg up to the individual beneficiaries is a good thing, but it’s not really what affirmative action programs are about.

          • Honorable.Bob says:

            …but it’s not really what affirmative action programs are about.

            I guess that was my point.

            It was a terrible thing to limit an individual’s opportunities based upon the color of their skin….and it’s no less terrible today.

            It’s just inherently the wrong thing to do. Thank GOD the court will likely right this injustice and actually honor “equality under the law”.

            • joe from Lowell says:

              I guess that was my point.

              Um, no. You aren’t making any sense, and my point about segregation clearly went over your head.

              to limit an individual’s opportunities based upon the color of their skin

              I see. Giving an available spot to a black student limits some white student’s opportunity, but giving that same spot to a white student doesn’t limit anyone’s opportunity. Whatever.

              Meanwhile, the entire reasoning behind Brown vs. Board, and the effect of segregated schools on limiting opportunity, once again washes through the conservative mind without leaving even the slightest residue.

        • Malaclypse says:

          Is it just a war on White People?

          Yes, Bob, the evidence of oppression is everywhere. It is indeed a War on White People. You have ferreted out the secret. Damn you and your wily, weaselly ways!

          How did you figure it out? It was the Whitey Tape, wasn’t it?

  2. Marc says:

    Perhaps the way forward is to point out that men are now a category favored by affirmative action in a lot of areas, including both many advanced fields in the humanities and selective undergraduate institutions overall.

    • Mike Schilling says:

      The high school my son goes to is exactly 50% boys and 50% girls, enforced by affirmative action. Going purely by objective criteria like grades and test scores, it would be over 60% girls.

  3. Joshua says:

    Legacy admissions will be examined by the court as well, right?

    • L2P says:

      Technically race-neutral, so cool with this group of largely white peeps.

    • Manju says:

      All you have to do to end legacy is deny federal funds to any University practicing it.

      A RWinger could try to end AA and Legacy at the same time. That would be fun as it would drive liberals crazy; “AA and legacy equally evil? False equivalence!”

      A LWinger could do it as a tit for tat, since AA is on its way out anyway. Can you imagine a RWinger explaing why he voted to keep AA; “I did it to preserve legacy! Exeter is expensive. Think of the parents”. Bubba’s really going to buy that. So its happy hunting for you guys too.

      The courts would have to look at disparate impact. I’m not up on the status of this doctrine but it really shouldn’t get to that point.

      I hate populism as a default, but this issue has no demagoguery built in. Why should taxpayer money go to an unmeritorious institution? Put that guy who took down Acorn on the case.

  4. Joe says:

    Kennedy in Parents Involved said that diversity is an acceptable “compelling state interest” but that actual use of race individual student selection was a problem. He doesn’t have to overrule Grutter. He can say the Texas 10% plan is enough w/o the additional plan they used. As Souter/Ginsburg noted, the result would be race will be used on the down low but Citizens United (as Rick Hasen noted) is not as consistent as its rhetoric claims either.

  5. Sebastian H says:

    I agree that this case is likely to overturn AA, but for different reasons–this case is about Asians (who did not participate in black slavery in the US) being punished in favor of Hispanics (who were not black slaves). Whatever the merits of black/white AA as a compensatory mechanism, they don’t exist in the Asian/Hispanic case. Take out the compensatory issue and you have taken away a huge leg of support for AA. (Which perhaps its proponents might have thought about before expanding AA).

    In theory we could have AA only for black people, and target only white people.

    • Malaclypse says:

      this case is about Asians (who did not participate in black slavery in the US) being punished in favor of Hispanics (who were not black slaves).

      Now that, boys and girls, is how you beg a question.

      • Sebastian H says:

        What are you going to call it? They didn’t participate in slavery, right? They weren’t even favored members of the somethingarchy right?

        Call it whatever you want, but they get the short of the stick on affirmative action for no compensatory reason.

  6. Sebastian H says:

    “As Souter/Ginsburg noted, the result would be race will be used on the down low”

    Isn’t it already? The rhetoric is always that race is a minor plus factor, but the Michigan case proved that it had to be such an enormous factor as to be more than the difference between the lowest possible grade on the SAT and the highest, or more than an entire grade point (before trying to norm for school quality). Since Michigan isn’t nearly as competitive as other schools, and since it had to stretch so much to fulfill its ‘diversity requirements’, the only thing it did wrong was reduce the factors to something so quantifiable.

    No is seriously suggesting that other schools put their thumbs on the scales less than Michigan. Only that they didn’t make it so obvious with point systems.

  7. Number Three says:

    I always like to add that the ‘liberal’ Justice Stevens voted with the conservatives in Bakke in 1978. If he was where he was in 2003 in 1978 on this issue, maybe the Brennan-Marshall position in Bakke would have been the law of the land, at least for some period of time, as opposed to the bizarre Justice Powell ‘controlling opinion’ based on the Harvard College admissions program. Grutter basically told universities that they could use race, so long as they were never clear how they were doing so.

    My favorite thing here, though–isn’t the Texas top 10% system supposed to be the ‘conservative’ alternative to race-based AA? As I understand it, after the top-10%, race is taken into account. But isn’t this yet another sign of the rightward march of our law?

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