How the Supreme Court’s Decision Yesterday Impacts Higher Ed

TEASER: In a 5-4 decision, the Supreme Court limited public school districts’ use of race in school assignments. While the deciding justices plainly state numerous times in their opinion that the ruling will not affect higher education, the four dissenting liberals argued that the court’s decision “tacitly” overrules Grutter v. Bollinger, which upheld the University of Michigan Law School’s affirmative action admissions policy in 2003.

Not only was the U.S. Supreme Court split in its decision to reject the integration strategies of the Louisville, Ky., and Seattle public school districts Thursday, but they were also split over whether the decision will affect higher education.

In a 5-4 decision, the Supreme Court limited public school districts’ use of race in school assignments. While the deciding justices plainly state numerous times in their opinion that the ruling will not affect higher education, the four dissenting liberals argued that the court’s decision “tacitly” overrules Grutter v. Bollinger, which upheld the University of Michigan Law School’s affirmative action admissions policy in 2003.

Goodwin Liu, who wrote the amicus curiae brief for 19 former University of California chancellors in support of the two school districts’ integration programs, says the decision won’t threaten the Grutter ruling.

“I think that the majority of the court is still willing to keep the Michigan affirmative action case intact,” he says.

Nevertheless, Liu, an assistant professor of law at UC-Berkeley, says proponents of affirmative action must still be cautious.

“Colleges and universities have to continue to be careful in how they design their own race-conscious affirmative action measures,” he says. “That was true ever since 2003, but it is even more true today because there are four conservative justices who would gladly overrule Grutter. And there is Justice [Anthony] Kennedy, who was dissenting in Grutter. So if you count the votes, there are five votes who would have decided Grutter differently if the case was brought completely fresh with no precedent in mind. But Justice Kennedy’s decision today suggests that at least for now he regards Grutter as an intact precedent.”

The major opinion stated that the integration plans used by the Louisville and Seattle school districts are not like the Michigan admission policy, where race is one of many factors.

Race “is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor,” said Chief Justice John Roberts in announcing the Court’s decision on Thursday. Roberts was joined in his decision by Justices Antonin Scalia, Clarence Thomas, Samuel Alito

And Anthony Kennedy.

Dr. Gary Orfield, who has written several books on the issue, notes that the court repeatedly said that its ruling doesn’t affect the Michigan case.

“If you take them at their word, then this decision has no impact on higher education,” says Orfield, who is a professor of education at the UCLA’S Graduate School of Education and Information Studies and is co-director of The Civil Rights Project/Proyecto Derechos Civiles. However, “if you look at their reasons for some of the premises, then they are not reassuring.”

In the Grutter ruling, Justice Sandra Day O’Connor sided with the majority. She has since retired and been replaced by Alito. The conservative Alito voted with the majority Thursday in Parents Involved in Community Schools v. Seattle School District No. 1, 05-908, and Meredith v. Jefferson County Board of Education. Parents sued the school districts because the districts take race into account when determining what school students will attend. Both plans were endorsed in federal appeals court, but overturned by the Supreme Court. 

“From my perspective, we’ve been becoming more segregated in our schools ever since the early ’90s,” Orfield says. “We ought to be thinking about how to take some positive steps. Instead we are going to be trying to figure out how to keep as many of the plans that exist now, and school districts are going to have to put a lot of work into figuring out what can be done under what circumstances. I think that is really unfortunate.”

The four dissenting justices argue that the Equal Protection Clause that was ratified following the Civil War has always made a distinction between state action that seeks to segregate and state plans that strive to integrate.

“From Swann to Grutter, this Court’s decisions have emphasized this distinction, recognizing that the fate of race relations in this country depends upon unity among our children, ‘for unless our children begin to learn together, there is little hope that our people will ever learn to live together,’” said Justice Stephen Breyer in a dissent joined by Justices John Paul Stevens, Ruth Bader Ginsberg and David H. Souter.

Roberts attacked that interpretation, ending his opinion saying: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The dissenters also assert that the Grutter decision should have set a precedent for upholding the appeals court’s decision.

“Just as diversity in higher education was deemed compelling in Grutter, diversity in public primary and secondary schools — where there is even more to gain — must be, a fortiori, a compelling state interest,” Breyer wrote.

Roberts agreed that the court has previously upheld that a government interest in student body diversity in higher education is compelling.

“Justice Breyer’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases ‘follows a fortiori’ from Grutter, and accusing us of tacitly overruling that case,” Roberts wrote. “The dissent over-reads Grutter, however.

“That interest was not focused on race alone but encompassed ‘all factors that may contribute to student body diversity,’ including having ‘overcome personal adversity and family hardship,’” Roberts’ opinion continued. “The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan, when race comes into play, it is decisive by itself.”

The dissenting justices expanded the scope of the argument, declaring that this new ruling will “threaten the promise” of the 1954 Brown v. Board of Education decision that made segregated education illegal.

“The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,” Breyer wrote. “To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the nation will come to regret.”

– Ibram Rogers

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