Overturning or Modifying ‘Grutter v. Bollinger’?

In February, when the U.S. Supreme Court decided to hear a challenge to the use of racial preferences at the University of Texas, supporters of affirmative action understood the move to be a bad sign. But at least in the lower courts, opponents of affirmative action had argued that the University of Texas’s use of race was illegal under a 2003 precedent, Grutter v. Bollinger.

Now, as Peter Schmidt notes in a Chronicle story, court papers filed by opponents of affirmative action last week go further and invite the Supreme Court to overturn Grutter, a decision which allowed universities to employ race under certain circumstances.

It is possible that the Supreme Court will simply reverse Grutter. Indeed, there may be four conservative justices—John Roberts, Samuel Alito, Atonin Scalia, and Clarence Thomas—who are willing to apply to higher education Chief Justice Roberts’s argument in the K-12 setting: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But outright reversal of the nine-year-old Grutter decision, and adoption of a full ban on affirmative action, seems unlikely to appeal to the swing vote on the court, Justice Anthony Kennedy. In the 2007 challenge to the use of race in the K-12 setting, Justice Kennedy rejected an absolutist position. Kennedy believes that racial diversity is a positive value, and doesn’t believe, as other more conservative justices do, that the use of race is almost always barred.

Having said that, the new brief filed last week is likely to persuade Kennedy to significantly curtail the ability of colleges and universities to use race. The brief mentions Justice Kennedy’s name 20 times. (The other eight sitting justices, collectively, are mentioned by name twice.)

Justice Kennedy dissented in Grutter and one of his central complaints was that the Supreme Court had given too much deference to the University of Michigan Law School in its contention that it could find no way to produce a critical mass of minority students other than by using race.

In the new brief in the Texas case, filed by the petitioner, Abigail Fisher, the following data are emphasized:

* In 1996, when UT Austin used race in admissions, the freshman class was 18.6% African American and Hispanic.

* In 1997, when UT Austin was temporarily barred from using race in admissions, but employed socioeconomic factors, the entering class was 15.3% African American and Hispanic.

* In 2004, when UT Austin was still barred from using race, and employed socioeconomic factors combined with a plan to admit the top 10 percent in every high school, the freshman class was 21.4 percent African American and Hispanic—a greater representation than the 1996 entering class in which race was employed.

* The University of Michigan Law School’s racial diversity program, upheld in Grutter, resulted in a minority representation of 14 percent—a figure below the minority percentage achieved by UT Austin using socioeconomic status alone (15.3 percent) or socioeconomic status along with the top-10-percent plan (21.4 percent).

Given these data, it seems hard to see how Justice Kennedy, who wants race used only as a “last resort,” would support the decision of UT Austin to reintroduce considerations of race after 2004.

I can also see Justice Kennedy’s ire raised by fact that UT provides a benefit to Latino students in admissions, and not to Asian Americans, even though there are more Latino students than Asian students at UT Austin. The layman’s response—that Latino students are under-represented compared with the general Texas population, while Asian students are over-represented—has never been accepted by the U.S. Supreme Court, which has justified racial preferences narrowly as connected to having a critical mass of students who will enrich the intellectual discussion on campus.

Given the facts in Fisher v. Texas, it seems likely that Kennedy will strike down the use of race and require universities to try alternatives—like economic affirmative action and emphasizing grades over test scores—before they can justify resorting to race.  This requirement was technically already a part of Grutter, though it was unenforced by the justices in the case itself. So Kennedy need not overturn the precedent, but rather give teeth to its requirement that universities first employ race-neutral methods. Such a ruling, while upholding Grutter, would nevertheless upend the current practices of universities and colleges throughout the country, institutions which give lip service to employing admissions factors such as economic disadvantage and jump straight to racial preference.

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