University of Texas Affirmative Action Grant -- Preliminary Thoughts

By Mike Dorf

Today the SCOTUS granted certiorari in Fisher v. University of Texas, which poses the following main questions: 

1) Whether the bump that UT gives in admissions to minority candidates in order to maintain a "critical mass" in particular fields survives scrutiny under Grutter v. Bollinger;


2) If so, whether Grutter v. Bollinger ought to be overruled.

In addition, there is a threshold question of whether the plaintiff has standing (or the case is moot) in light of the fact that after she lost in the lower courts she enrolled in LSU, from which she has now graduated.  Herewith, a few very quick reactions.

A) I strongly suspect the Court will reach the merits.  Given the glacial pace of litigation, it will not be that unusual for a challenge to university admissions to remain in the courts even after the original plaintiff has graduated.  Thus, one can readily envision the majority invoking the capable-of-repetition-yet-evading-review exception to mootness.  We know that at least four Justices voted for cert notwithstanding the potential standing/mootness objection, which was clearly argued as a reason for denying cert. 

B) The case could make new law notwithstanding the fact that Justice Kagan is recused if Justice Kennedy joins the conservatives to form a five-Justice majority for overruling Grutter.  Although I think the odds are substantial that there will be five votes to reverse in the particular case and rule for the plaintiff, I think it unlikely that the Court would take this opportunity to overrule Grutter.  Justice Kennedy pretty much accepted Grutter in the Parents Involved case.

C) But to say that Justice Kennedy accepts Grutter is not to say that he will apply it the way that we might have expected Justice O'Connor to apply the case.  Both Justice Kennedy's own Grutter dissent and the Grutter dissent by CJ Rehnquist that Justice Kennedy joined expressed grave skepticism of the claim that the University of Michigan Law School was actually seeking a critical mass.  And they had a point.  Here is the late Chief Justice's core analysis with regard to critical mass:
From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve “critical mass,” thereby preventing African-American students from feeling “isolated or like spokespersons for their race,” one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans.
The actual admissions numbers, CJ Rehnquist (joined by Justice Kennedy) concluded, reflected impermissible "racial balancing."  I would not be surprised if Justice Kennedy were to parse the record carefully to find evidence that the University of Texas likewise is using critical mass as a cover for racial balancing.

D) The case will be argued next Term, probably in October, possibly in November.  Either way, it will thus make affirmative action highly salient right during the peak of the general election campaign.  The Obama Administration will be under pressure to file a brief, but even if the SG does not file, we can expect the Republican nominee to use the case to drum up support among white middle and working-class voters, who tend to strongly dislike race-based affirmative action.  So the timing of the cert grant is especially good for the eventual Republican nominee and perhaps for Republican candidates more generally.

Finally, don't blame the messenger!  From my perspective, the foregoing is all pretty dispiriting.  I'm just calling it as I see it, rather than spinning.