an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Supremes Affirm Michigan Law School Affirmative Action Policy, 5-4, Strike Down Undergrad Policy, 6-3
All in all, a big victory for institutions of higher education, which can engage in race conscious affirmative action as long as they engage in individualized determinations and do not use point systems to ensure a specific number of minority admissions.
The Law School policy, which focuses on achieving a critical mass of minority students, was upheld, 5-4.
Justice O'Connor wrote the majority opinion in the law school case. (Available here.) She reaffirmed the central premise of Bakke: "The Equal Protection Clause does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
The lineup was the expected one: Stevens, Souter, Ginsburg and Breyer joined O'Connor. The dissenters were Rehnquist, Scalia, Kennedy and Thomas.
In the undergrad case, (available here) Chief Justice Renquist wrote the majority opinion. O'Connor and Breyer switched sides. Breyer concurred in the judgment but did not join Rehnquist's majority opinion. Stevens, Souter, and Ginsburg dissented.
The result, one hopes, is a set of two opinions that will allow schools to know what they can do and cannot do in affirmative action programs.
Several things are noteworthy about these opinions.
The Court reaffirmed Justice Powell's opinion in Bakke. Justice O'Connor, who has been concerned about treating students as individuals rather than as members of groups, focused on Justice Powell's concern with individualized determinations. As a result, she joined the majority in the undergrad case, where, Chief Justice Rehnquist said, the university failed to offer individualized determinations.
Because they require individualized determinations, Grutter and Gratz together will require state universities to spend extra money. The result benefits elite schools and private colleges with relatively fewer applicants and imposes more costs on large state universities that have many, many more applicants every year.
O'Connor's opinion in Grutter also made clear that the states do not have to adopt race netural alternatives (like ten percent plans, which are not really race neutral in any case) before they consider race conscious affirmative action in admissions. This is a rebuff to advocates of race neutral plans who insisted that if strict scrutiny applied to race classifications, then states would have to exhaust all possible race neutral methods of increasing minority enrollments before they considered race conscious affirmative action programs. Indeed, Justice Kennedy's dissent in Grutter says that he does not believe that what Justice O'Connor applies in Grutter is really strict scrutiny at all.
Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.
Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise. (Update: I see that my friend --and former O'Connor law clerk-- Eugene Volokh concurs with this assessment of what O'Connor was doing in mentioning the 25 year period).
Most institutions of higher education should be breathing a sigh of relief at these two opinions. They allow most elite institutions to go about their business as before. They impose higher costs on big state universities, but many of these universities are already so firmly committed to affirmative action that they will probably gladly take on the additional costs. Essentially the Court has said that affirmative action in higher education is constitutional, as long as individualized determinations are made and specific markers or point systems virtually guaranteeing predetermined numbers of minorities are not used.