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Constitution Check: Is Affirmative Action in College Admissions Doomed?

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today's topic: the future of college admissions policies based on race.

The statement at issue:

"I think it's ominous. It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment."

-- Lee Bollinger, president of Columbia University, quoted February 22 in the New York Times in reaction to the Supreme Court's announcement the day before that it will rule on the constitutionality of the use of race in admissions to public colleges and universities.

We checked the Constitution, and...

It will be months, maybe not until next year, before the nation will know whether the foreboding of Columbia University's Bollinger about the fate of affirmative action in college admissions is well founded. The Supreme Court will not hear the new test case from the University of Texas until its new term starting October 1, and a final ruling is not likely to come down until well into that term, perhaps in the late spring of 2013.

In the meantime, almost everyone attempting to predict the outcome probably will weigh the potential significance of a statement that Chief Justice John G. Roberts, Jr., made five years ago in the closing paragraph of an opinion. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote in Parents Involved in Community Schools v. Seattle School District.

That decision, striking down voluntary public school assignment plans in Louisville as well as in Seattle that took students' race into account, was the first clear sign that a change in the membership of the Court would make a difference to the concept of affirmative action. In fact, Justice Stephen G. Breyer, in announcing from the bench a strongly worded dissent, made this comment: "It is not often in the law that so few have so quickly undone so much."

Just four years before, in the case of Grutter v. Bollinger (Lee Bollinger at that time was president of the University of Michigan), the Court had upheld the use of race among a variety of other factors in choosing entrants to the Michigan Law School. Justice Sandra Day O'Connor, who wrote the majority opinion, closed with these remarks: "It has been 25 years since Justice [Lewis F.] Powell first approved the use of race to further an interest in the context of public higher education [University Regents v. Bakke]... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Both the 2003 and 2007 decisions came on 5-4 votes. Between the two, Chief Justice William H. Rehnquist (who had dissented in the Michigan case) had died, and Justice O'Connor had retired. Rehnquist was replaced by Chief Justice Roberts, and O'Connor by Justice Samuel A. Alito, Jr.-both in the majority in the 2007 decision.

Another five years have passed now, and the only Justices remaining from the majority in the Michigan decision are Justices Breyer and Ruth Bader Ginsburg. (Justice David H. Souter has retired, and was replaced by Justice Sonia Sotomayor; Justice John Paul Stevens has retired, and his successor is Justice Elena Kagan.) Justices Breyer and Ginsburg were in dissent in the Seattle/Louisville case.

Three of the Justices in the dissenting bloc in 2003 remain on the Court: Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. They were in the Roberts majority in the Seattle/Louisville ruling.

With the current lineup, it would appear that Justice Kennedy is likely to hold the decisive "swing" vote when the Court rules on the newly accepted case from Texas' flagship university, the campus in Austin. (The case involves a disappointed white applicant, Abigail Noel Fisher of Sugar Land, who has claimed that she was denied admission because of the race-conscious program the university adopted in the wake of the Grutter ruling.)

Looking back to what Kennedy wrote in dissent in 2003, he recalled with approval Justice Powell's view that a university admissions program "may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual," but he argued that any such use of race must be judged by the strictest constitutional standard. He argued that the O'Connor opinion had abandoned that standard, and simply accepted the Law School's assurances that it had satisfied the Constitution's requirements.

When the Court approaches its coming decision in Fisher v. University of Texas, it no doubt will rigorously apply that strong standard; Kennedy surely will insist upon it. It could be that, in doing so, the Court might find that the Texas system cannot be upheld, and that there is thus no occasion-yet-to cast aside the Powell approach altogether by overruling the Grutter decision. Justice Kennedy has been somewhat more flexible on race issues than some of his conservative colleagues, and he may not yet be ready to cast aside altogether the use of race as "one, nonpredominant factor" in a system that actually treats college admission in an applicant-by-applicant process.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

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