But, of course, O’Connor is now retired from the court, replaced by Samuel A. Alito Jr., a justice far more skeptical of racial remedies. And two recent decisions in lower courts have raised the prospect that the issue will return to the high court far ahead of O’Connor’s timeline.
One is from Texas, where a panel of the U.S. Court of Appeals for the 5th Circuit upheld a race-conscious admissions policy at the University of Texas at Austin. An attempt to have the entire circuit hear the case failed 9 to 7, and dissenters practically invited the Supreme Court to step in.
The other is from Michigan, where voters in 2006 passed a constitutional amendment to forbid the state’s public colleges and universities from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”
A panel of the U.S. Court of Appeals for the 6th Circuit ruled 2 to 1 that the amendment violates the Equal Protection Clause of the 14th Amendment because it restructures the state’s political structure to the detriment of minorities.
Michigan Attorney General Bill Schuette (R) on Friday asked the full circuit to review the decision, and said that the Supreme Court would be the next stop if he is unsuccessful with the circuit court.
“It’s absurd to conclude that banning racial discrimination somehow perpetuates racial discrimination,” Schuette said in announcing his plans.
The decisions focus renewed attention on the court’s controversial pair of decisions in June 2003 regarding racial preference programs at the University of Michigan.
Gratz v. Bollinger
, the court ruled 6 to 3 that the university’s undergraduate admissions policy was unconstitutionally discriminatory because it automatically awarded a bonus to applicants who were underrepresented minorities.
But in Grutter, the court upheld the law school’s policy of considering race as part of a holistic evaluation of an applicant. O’Connor said government had a compelling interest in diversity, including seeking a “critical mass” of minority students.
The combination of rulings seem to allow colleges and universities to approve the consideration of race if the policy, among other things, is narrowly tailored, free of quotas, flexible and individualized, does not award points simply on the basis of race and is limited in duration, or at least periodically reviewed.
The Texas case,
Fisher v. University of Texas
, is the farthest along. Washington lawyer Bert W. Rein, who represents Abigail Fisher and Rachel Michalewicz, two students who said UT’s policy discriminated against them, has until mid-September to file a petition with the Supreme Court asking for review.
Rein has argued that the use of race is unnecessary, because UT has in place a race-neutral admissions policy that already results in percentages of minority students “far beyond” the numbers at issue in Grutter.
Texas law provides that graduates in the top 10 percent of their Texas high school be automatically admitted to any state university. They account for the vast majority of UT freshman classes, and Rein said 30 percent of the enrolling students are from underrepresented minorities.
But UT officials do not feel that is enough for a state in which — in the near future — there will be no majority race. In evaluating applicants not in the top 10, it decided after Grutter to consider race along with a number of other factors, such as community service, leadership qualities, test scores and work experience.
The panel said such a plan satisfied the court’s standards set in Grutter. But other judges in the circuit disagreed. Chief Judge Edith H. Jones wrote that the panel’s deference to university officials and talk of classroom diversity are not what Supreme Court precedent demands; instead, they are “misguided and pernicious to the goal of eventually ending racially conscious programs.”
Civil rights groups get nervous when such cases arise before the reconstituted Roberts Court. NAACP Legal Defense and Educational Fund President John A. Payton hopes Texas’s unique system makes it a bad fit for a high court review of race-conscious programs.
“I don’t think the court is looking to overturn Grutter,” he said.
But Jennifer Gratz disagrees. She was the named plaintiff in one of the 2003 cases. She won the battle in her own case only to lose the war in the other. She now works for the American Civil Rights Institute in California, where she directs state efforts at removing racial preferences.
“At some point, the split in Gratz and Grutter will have to end up back at the Supreme Court,” she said.