The Supreme Court announced yesterday that it will hear two cases that could provide a broad and decisive ruling on the future of affirmative action in higher education.
The cases, Grutter v. Bollinger and Gratz v. Bollinger, were filed by white prospective students to the University of Michigan who claim they were discriminated against by Michigan admissions policies, which attempt to promote racial diversity by giving advantages to prospective minority students, a claim that has been denied by lower courts.
The justices will hear oral arguments in March and deliver opinions in July.
The Supreme Court's decision to hear the cases "is not a surprise," Law School Dean John Jeffries said. "This is an issue that has divided the lower courts -- it has taken the case to clarify a law that is presently very unclear."
Michigan's policy is similar to those in effect at a majority of American institutions of higher education, meaning the Supreme Court's decision could provide sweeping precedent for the legality of affirmative action.
"U.Va. is in the same position as Michigan in this litigation," Jeffries said. "If the court strikes down [the lower court's decision] it will require us to change our admissions policies, and if it upholds the decision, it will validate what we do."
Many scholars share Jeffries' sentiment that the current ruling needs clarification.
"This is long overdue," Law Prof. George Rutherglen said. "This is an issue of great significance for institutions of higher education."
Prior rulings on affirmative action have left the issue undecided.
The Supreme Court has not ruled on the constitutionality of affirmative action since Bakke v. Board of Regents, a 1978 case claiming that the University of California-Davis' use of affirmative action was unconstitutional. In that case four justices ruled in favor of affirmative action and four ruled against it.
The deciding vote was cast by Justice Lewis F. Powell, who held that affirmative action was tolerable in order to promote diversity, but the use of racial quotas was unacceptable. Powell's opinion has provided the standard guideline for institutions ever since, though several cases have attempted to challenge the ruling.
A 1994 case, Hopwood v. Texas, struck down affirmative action at the University of Texas. The decision was upheld by the 5th Circuit Court of Appeals, but the Supreme Court declined to hear the case at that time, leaving the lower courts divided on the issue.
"The question is whether affirmative action at public schools violates the equal protection clause of the 14th Amendment," Rutherglen explained. "The decision would also affect private schools as Title VI of the Civil Rights Act of 1964 extends that protection to any institution receiving federal funding, which almost all schools do."
Most legal scholars predict a close decision on the matter, as four justices tend to support affirmative action and four tend to oppose it. Many see Justice Sandra Day O'Connor, traditionally a moderate swing-voter, as the key vote.
"There are strong arguments on both sides," Law Prof. Steve Smith said. "Disadvantaged white students feel frustrated if less qualified minority students are allowed entrance, and it is understandable that they would want to be judged objectively. On the other hand, if it is a strength of a university to bring together students from all walks of life, that is hard to do if you can't look at race."
Jeffries said he hoped the court would uphold the affirmative action system schools now use.
"If you want to have a class that includes all elements of American society, this is necessary," he said.
Smith said he hopes the ruling will allow America to find constructive alternatives.
"I am skeptical of the value of affirmative action," Smith said. "Hopefully we can move beyond it. I think we get so transfixed on affirmative action that we do not help those who need help."
Law Prof. Kim Fourde-Mazuri said he thinks the ruling will strike down affirmative action.
"I think Michigan will likely lose," Fourde-Mazuri said. "O'Connor is the key vote and she usually sides with the conservatives on affirmative action."
Regardless of their personal opinions on the matter, all sources agree a broadly worded ruling will have a decisive effect on affirmative action in America.
"I think there will be serious implications regardless of how the ruling is framed," Rutherglen said.
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