The School Assignment Cases and Grutter

There are 185 pages, all told, in the opinions in today's school assignment cases; I have not read them all and don't want to make any unduly hasty judgments. But let me address one issue of particular interest to me. One question bruited about before the decisions came down was whether the Court, with its new composition, would eviscerate or overrule its recent decision in Grutter v. Bollinger, the University of Michigan Law School case. While I might modify my view upon a closer reading of the judgments as a whole, I think we can say that neither of these possibilities occurred. Grutter retains its vitality, for reasons that are important to larger projects I have discussed here, although it may be that those who thought that Grutter could apply in a variety of circumstances turned out to be wrong.

The relevant discussion comes at pages 13-17 of the majority opinion. The majority notes that Grutter rested on "the interest in diversity in higher education." But the Court stresses that the kind of diversity at issue in Grutter was not simply "race alone," but included a variety of factors beyond race. Moreover, the admissions program approved in Grutter involved a set of holistic and individualized determinations about admissibility, and not just a crudely operated search for racial balance. The Court thus distinguishes Grutter from the present cases, certainly without overruling and also, I think, without quietly eviscerating it. I think it is this last conclusion that will occasion the most controversy, and others may point to other aspects of the ruling that they do think damage Grutter. (More on this later.)

The majority, in the course of disagreeing with those lower courts that applied Grutter to various K-12 school assignment plans, also emphasizes that Grutter "relied upon considerations unique to institutions of higher education, noting that in light of the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Thus, to the majority, Grutter takes place within the "unique context of higher education," and within the tradition of academic freedom found in many First Amendment rulings over the past 50 years -- a First Amendment tradition that substantially underwrote the Court's decision in Grutter, and that is not relevant with respect to K-12 schools.

This is of special interest to me because, in several prior works and some forthcoming work, I have argued that Grutter supports a larger argument in favor of a First Amendment framework that is more institutionally oriented: that is, a framework that favors substantial judicial deference to a variety of entities that are especially important to our system of public discourse, that are bound by a variety of self-governing rules and traditions, and that accordingly are entitled to a substantial degree of autonomy. Nothing in today's discussion of Grutter undermines that approach, I think. To the contrary, the Court's explicit focus on the First Amendment aspects of Grutter tends to support it. (Although I must observe pointedly that this focus on the "unique context of higher education" was nowhere in evidence when the Court decided Rumsfeld v. Forum for Academic and Institutional Rights last term.)

Now, this leaves open some important questions, both for the Court and for my own little project. One question is this: Why is higher education a "unique context" in ways that elementary education is not, at least for purposes of this case? Courts usually speak in terms of the special expertise that universities have in deciding who shall be a member of the student body, among other questions; why do lower public schools not possess similar epistemic authority as compared to the courts? Even if the Court erred on this point, the outcome might be no different, given the very different nature of the admission plans in Grutter as compared the plans in today's cases. But the Court might have said more on this point. Perhaps the distinction is that the law school in Grutter did a better job of relating its interest in diversity to the particular expertise it wielded as a center of higher education, while the school districts in today's case engaged in a blanket assignment system that was not closely enough linked to their special interest in education. I can't say, and look forward to further commentary.

One other note I would make about this is that, if I am right, the Court found the law school's claim to epistemic authority strong enough to justify deference in Grutter, but did not find the school districts' claims to epistemic authority strong enough to justify deference in today's cases. But just last week, the Court did defer in a variety of ways to the determinations of public school administrators, in its decision in Morse v. Frederick. What gives?

I am sure much more remains to be said on the impact of today's cases on Grutter. For one thing, Grutter also comes up in a section of Chief Justice Roberts's opinion that is joined only by a plurality of the Court, and Justice Kennedy specifically refuses to join that discussion in his concurring opinion. I do not think that discussion matters to my discussion of Grutter as a First Amendment case, but it might have implications for Grutter in its primary Fourteenth Amendment aspects. Also, I noted above that whether you believe today's decisions damage Grutter may depend on what you think Grutter meant in the first place. After that decision, some commentators argued that Grutter applied naturally across a range of other environments -- public workplaces, lower public schools, and so on. Today's decisions, without definitively answering that question, certainly cast doubt on it. But that was not my impression of Grutter in the first place, so I am not sure that this really counts as evidence that today's decision reduces the footprint of its earlier decision.

In any event, to the extent that Grutter was about the degree to which courts will defer to the expertise of universities as "First Amendment institutions," certainly nothing in today's decision alters or undermines it.