Affirmative action back at high court

“What you are saying is that race counts above all.”

— Justice Anthony Kennedy,

Fisher v. University of Texas

“No your honor, what counts is different experiences.”

— Gregory Garre,

Attorney for Univ. of Texas

In more than a dozen cases over nearly three decades, the Supreme Court of the United States has been asked to determine whether programs that grant benefits, bonuses or advantages to minority groups are in violation of the Equal Protection Clause of the United States Constitution. The cases frequently feature lively oral arguments, multiple dissents and votes of 5–4 or 6–3 among the Justices.

What we now know as affirmative action traces its roots to the Civil Rights Act of 1964 and Executive Order 11246 signed shortly thereafter by President Lyndon Johnson. The order required most companies doing business with the federal government to maintain records of their hiring practices and required those government contractors with more than 50 employees to enact affirmative action plans. During the Nixon administration, the Department of Education (then Health, Education and Welfare) adopted affirmative action policies for higher education.

Supporters of affirmative action argue that the programs are necessary to remedy the efforts of a century and a half of racial segregation in the United States. Opponents argue that the programs are simply reverse-discrimination and that the Constitution should be color-blind. These competing interests have repeatedly made their way before the Supreme Court.

The first major test of affirmative action in education came in Regents of the University of California v. Bakke in 1978. Alan Bakke was denied admission to the medical school at UC Davis twice and, upon learning that other students with lower GPAs and lower MCAT scores were admitted because of the school’s affirmative action policies, Bakke sued. He prevailed in what remains one of the most muddled and labyrinthine decisions ever issued by the nation’s highest Court.

There was no clear five Justice majority in Bakke. Rather, two blocks of four Justices each issued written opinions and Justice Lewis Powell issued a separate decision. One of the blocks of four agreed with Justice Powell that the California policy was unconstitutional because it denied Bakke admission solely on the basis of his race. That block shied away from making a more general statement about affirmative action. The other four Justice block agreed with Justice Powell that race could be one factor in admissions decisions, but it could not be the only factor. Thus, there was no clear-cut statement from the Court. Bakke was admitted to UC Davis, graduated in 1982 and practiced as an anesthesiologist in Minnesota.

In 2003, again in a 5–4 decision, the Supreme Court decided Grutter v. Bollinger and embraced Justice Powell’s holding from Bakke. In Grutter, the majority held that race could be one factor in a larger admissions process in cases in which that factor was necessary to favor underrepresented minorities. Barbara Grutter, who was 43 years old when she applied to the University of Michigan, did not reapply after the case was over and never attended law school.

On Wednesday of this week, the Supreme Court heard arguments in Fisher v. University of Texas, a case brought by Abigail Fisher and Rachel Michalewicz against UT, claiming both that the school’s admissions policy violates the decision in Grutter and that Grutter should be overruled entirely. What became clear in Wednesday’s oral arguments is that the change in the court’s make-up since the Grutter decision is likely to have a major impact on the outcome of the case.

Chief Justice Rehnquist has been replaced by Chief Justice Roberts, Justice Stevens has been replaced by Justice Kagan (who has recused herself from the Fisher case meaning that it will be decided by only eight Justices) and Justice O’Connor has been replaced by Justice Alito. The last change is the key one. That is because Justice O’Connor joined the liberal wing of the Court and wrote the majority in the Grutter case. Justice Kennedy, who is often a swing vote in closely decided cases, was in the majority in Grutter and seemed to be opposed to the UT policy in Wednesday’s oral arguments.

If Chief Justice Roberts holds the same opinion as Rehnquist then Justice Alito, who similarly seemed opposed to the race-conscious admissions policy, becomes the key vote in Fisher. The question then will not be whether the UT admissions policy survives, but rather whether the Grutter decision survives or is overturned in its entirety.

Though the Court has heard oral arguments in the case, it will likely be spring before a written decision is issued. The decisions of lower courts and filings of the parties in the Fisher case can be read at oyez.org.

David Hejmanowski is a Magistrate and Court Administrator of the Delaware County Juvenile and a former Assistant Prosecuting Attorney.