[Editor’s Note: This month, faculty members are posting on upcoming judicial decisions of particular interest. This is the second post in the series.]

It seems almost certain that the Supreme Court will again take up the issue of affirmative action in higher education, as two highly controversial cases separately make their way up the appellate ladder.

On two occasions, Regents of the University of California v. Bakke (1978) and the companion cases of Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), the Supreme Court has, by narrow 5-4 majorities, upheld the constitutionality of college and graduate school admissions programs that take race into account when making admissions decisions. In the same cases, the Court, also by 5-4 votes, struck down the use of formal admissions quotas (Bakke) and the awarding of a specific number of points for race in a numerically-based admissions systems (Gratz) as running afoul of the Equal Protection Clause of the Fourteenth Amendment. Although there was no clear majority sentiment on this point, the use of race as an admissions “consideration” was famously justified in opinions by now-former justices Lewis Powell and Sandra Day O’Connor as a way of achieving the “compelling state interest” in “diversity” in the composition of college and university student bodies.

In the first of the new cases, Fisher v. University of Texas, Abigail Fisher and a number of other unsuccessful white applicants to the undergraduate program at the University of Texas argue that they were denied the opportunity to attend the university because of its policy of taking race into account in making some of its admissions decisions.

The University of Texas uses an admissions system that guarantees admission to students who graduate in the top ten percent of their Texas high school classes. This system accounts for 81% of admitted students, but the other 19% are chosen through a competitive process in which race is taken into account as one of multiple factors used to determine which students will be offered admission. The policy was adopted following the Supreme Court’s decision in Grutter in which a similar practice by the University of Michigan Law School was upheld.

Fisher’s suit was dismissed by the federal district court on the grounds that this issue had been resolved by Grutter. On appeal to the Fifth Circuit, the three-judge panel unanimously upheld the decision of the district court, although one of the three, Judge Emilio Garza, filed a concurrence in which he forcefully questioned the correctness of the Grutter decision.

Fisher then petitioned for an en banc hearing, which was denied, although by a narrow vote of 9-7, with Chief Judge Edith Jones filing a dissenting opinion which was joined by four of her colleagues.

Fisher then petitioned to the United States Supreme Court for a writ of certiorari, and the petition remains on the Court’s current docket. To date, the University of Texas has, somewhat mysteriously, refused to respond to the petition, although at least six amicus briefs have already been filed. The Supreme Court has already taken the unusual step of formally requesting a response from the University, which now has until November 30, 2011, to file a reply or request an extension of the time to do so.

Should cert be granted, it is still possible that Fisher could still be argued before the full court during this term.

Two questions jump out in regard to this case. The first has to do with the personnel changes on the court since 2003. Is there now a five-justice majority willing to overturn the Court’s Grutter decision? Many observers think there is. Presumably, Chief Justice Roberts shares the affirmative action views of his predecessor Chief Justice Rehnquist, but there are strong reasons to believe that Justice Alito’s views are more in line with those of strongly anti-affirmative action justices Scalia and Thomas than they were of his predecessor, Justice Sandra Day O’Connor. However, the matter is somewhat complicated by the increasingly unpredictable views of Justice Kennedy, who could conceivably shift over to the pro-affirmative action side.

The other interesting issue raised by Fisher involves a question of standing. No court has yet ruled that either Abigail Fisher or any of her other co-appellants would have been admitted to the University of Texas had it not been for the school’s practice of taking race into account. This is a recurring problem in reverse discrimination cases: how does a plaintiff establish conclusively that he or she has Article III standing to challenge an allegedly unconstitutional admissions system that may (or may not) have affected them adversely?

It is possible, of course, that the trial court could reach such a conclusion, as it apparently did in Bakke and Grutter, but in this case there was really never an opportunity to do so, since the district court believed the question to be irrelevant under Grutter.

The Supreme Court may (or may not) have reached this issue in its 1999 decision in Texas v. Lesage, a Section 1983 action filed by an unsuccessful white applicant for a graduate program at the same University of Texas. In that case, the Supreme Court unanimously dismissed the plaintiff’s action, but there the trial testimony had included evidence that Lesage would not have been accepted to the program, even if all of the available slots had been filled by Caucasians. (My friend Vik Amar has written a very intelligent commentary on this question which can be found at http://verdict.justia.com/2011/10/28/an-update-on-the-fisher-v-university-of-texas-affirmative-action-case.)

The second of the two new cases involves an amendment to the Michigan state constitution enacted after the Supreme Court’s decision in Grutter. The amendment was designed to achieve what the Gratz-Grutter litigation had not. Similar state constitutional amendments had earlier passed in California and Washington.

The Michigan Civil Rights Initiative, formally known as Proposal 2, was a proposed amendment to the Michigan Constitution that was adopted by a public referendum in 2006, by a vote of 58% to 52%. The amendment prohibits any agent of the state from discriminating against, or giving preferential treatment to, anyone on the basis of race, sex, color, ethnicity, or national origin.

The Proposal 2 amendment was sponsored by a number of groups, including noted black anti-affirmative action activist Ward Connerly and the Michigan Civil Rights Initiative, whose executive director was Jennifer Gratz, the successful plaintiff in Gratz v. Michigan.

A number of different legal challenges have been filed against Proposal 2. An effort to have it removed from the ballot in 2006 as inconsistent with the federal Voting Rights Act was unsuccessful; however, after its adoption, it was again challenged on the theory that the amendment violated the Fourteenth Amendment to the United States Constitution.

In 2008, the United States District Court for the Eastern District of Michigan upheld the constitutionality of the Michigan Amendment, but that decision was recently reversed by a 2-1 decision of the Sixth Circuit Court of Appeals in Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. At the end of June, the court ruled that the amendment “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” The state of Michigan has petitioned for a hearing en banc, and as of the end of November, no ruling on the request has been issued.

While the Michigan case will not be part of the Supreme Court’s 2011-12 docket, it may well hear the matter the following year.

The Supreme Court has avoided making a conclusive ruling on the constitutionality of race-based affirmative action for almost forty years now, but the issue has a way of coming back time after time. However, with all the evidence pointing toward a sharply and evenly divided court, it is unlikely that these cases, if they are in fact heard, will be the end of the story.