The Supreme Court has another chance to review racial preferences

Clarion Call No. 158
The stage is set for the Supreme Court to tackle that thorniest of issues, the legality of racial preferences in college admissions. All that remains is for the Court to decide to review the case.

The case is Grutter v. Bollinger, concerning preferential admissions to the University of Michigan Law School. In a rare en banc hearing, the U.S. Court of Appeals for the Sixth Circuit narrowly ruled, 5-4, in favor of the law school’s use of racial and ethnic preferences in admissions decisions.

Court observers think it is likely the decision will be taken up for review by the court. There is now a large division in the federal courts of appeals on the issue. The Sixth Circuit and the Ninth Circuit (concerning racial preferences at the University of Washington Law School) have now both ruled in favor of the “diversity” rational for using racial considerations in admissions decisions, upholding Justice Lewis F. Powell Jr.’s decision in the 1978 landmark Supreme Court case Regents of the University of California v. Bakke. The Fifth Circuit, in Hopwood v. Texas, rejected that rationale as a justification for discrimination. Furthermore, the Eleventh Circuit was unique in its ruling against the University of Georgia’s racial points system of admissions in that it ruled that the use of racial considerations in admissions decisions must be “narrowly tailored” to Powell’s diversity rationale.

Interpretation of the Bakke decision is a crucial feature of the Michigan case. Lawyers for the university argued that Powell Jr.’s opinion favored the limited us of race-based admissions to ensure a racially diverse campus. The plaintiff’s lawyers responded that none of the other justices subscribed to Powell’s diversity justification and instead viewed race-preferential admissions only to address racial discrimination by the university itself or society at large, and they pointed to subsequent rulings by the Court, such as Adarand Constructors Inc. v. Mineta, that now apply the highest standard of scrutiny to racial preferences used to remedy societal discrimination.

The Court has passed on, or not had a chance to review, previous cases involving racial preferences. In 2001 it declined for a second time to review Hopwood (having already declined on it in 1996). Also in 2001, the Court dismissed an appeal of the Ninth Circuit’s decision favoring racial preferences at Washington. The University of Georgia declined to appeal the Ninth Circuit’s decision that same year. In 1998 the Court declined to review Farmer v. Nevada, concerning race-preferential hiring policies at the University of Nevada. In 1997 a coalition of civil-rights groups finagled a last-minute monetary settlement in the case of Piscataway v. Taxman, concerning race-preferential hiring policies at a New Jersey high school, which the Court had selected for review.

That the Court would grant a review of the Michigan case was considered likely regardless of the outcome of the Sixth Circuit’s en banc hearing. Nevertheless, a likelihood is not a certainty, and if the Court declined, the circuit court’s ruling would stand. In that scenario, some features of how the Sixth Circuit handled the ruling raise the red flag of partisan politics.

All five judges ruling in favor of racial preferences were Democrat appointees. All three Republican appointees dissented, joined by one Clinton appointee. At present, the Sixth Circuit is only half its normal size, thanks to the Democrat-controlled Senate’s out-and-out refusal to confirm any nominees sent to them from the Republican president, George W. Bush. There are eight vacancies on the court (one of the judges ruling in the Michigan case having taken “senior status” last December). Bush has so far sent seven names to the Senate without one confirmation.

Furthermore, the request for en banc hearing was made last May, as dissenting Judge Danny J. Boggs noted in a “Procedural Appendix” that he filed “to record as an explanation of the manner in which this case came before the particular decision-making body that now decided it.” There were 11 active judges in the circuit then, and a conservative majority. The request, however, failed for some reason to be circulated to every judge. In fact, the request was not revealed nor granted until after two conservative judges retired.