SCOTUS update I

The Gratz decision, just issued this week, is the decision on the Michigan undergraduate case, which used the complicated number grading system for admission, and gave an extra 20-point bump to “underrepresented communities.” To understand this ruling, one needs to get the standard of review the Court used. The Supreme Court has staked out standards of review in many prior cases. They basically fit into three categories:

• Rational Basis review. This is the most deferential standard that a court uses to interpret a law. It means that if the law has a rational basis in advancing a permissible state interest then the law stands. Most cases get viewed under rational basis review unless some triggering interest bumps it up to a different level. Dealing with a “suspect class,” usually defined as a classification based on something that you can’t change will get you kicked up to a higher standard of review based on the Equal Protection clause or the Due Process clauses of the 5th (federal government) or 14th (state governments) amendments.



• “Intermediate scrutiny.” I put this in scare quotes because there never really has been a consistent label put on this. It is a middle category for, mainly, gender cases, where the suspect class is the gender of the claimant. A good example of intermediate scrutiny would be the standard that the SCOTUS used in the VMI case a few years back, invalidating the state support for an all-male service academy without any sort of female version of it that got the same type of support.



• Strict Scrutiny. This is an almost impossible standard of review for a law to survive. If it’s getting strict scrutiny then the law must demonstrate that it has been (two-part standard) narrowly tailored to further a compelling state interest.

So what happens in Gratz is that the court decides that it is a strict scrutiny question, and that the policy is not narrowly tailored for a compelling state interest.

Back in 1978, the much-hyped Bakke decision was issued with a wishy-washy holding. Powell, writing for the majority, said that quotas were bad and unconstitutional. Yet, he said, race as a factor in admission “could be” a compelling state interest. Which would get the school past the second part of the strict scrutiny test. In fact, the court in Gratz more or less ruled that way. But Rehnquist, in writing for the majority, says that the use of the point-based weighting system is inherently a racial classification and an open-ended one. So while getting a diverse student body may be a compelling state interest, the point-based weighting system is too blunt an instrument to further the objective. I get the idea in reading the decision that the thing that Rehnquist is most uncomfortable with is the idea that people can get in or not based on group classifications and not on individual merit:

Even if student C's "extraordinary artistic talent" rivaled that of Monet or Picasso, the applicant would receive, at most, five points …. At the same time, every single underrepresented minority applicant, including students A and B, would automatically receive 20 points for submitting an application. Clearly, the LSA's system does not offer applicants [an] individualized selection process …

So this is the part that people are going to mis-understand for years: the Court is not saying that an affirmative action plan is per se unconstitutional. It’s saying that an affirmative action plan that is sufficiently individualized to perhaps give some sort of bump-up to a minority applicant could be ok, as long as it doesn’t disadvantage another group or cause people to get in or not get in based solely on their membership in a group. The funny thing is that is basically the same thing that the court said in Bakke.

The Grutter decision is the one that has gotten more attention this week, with good reason. It is a Big Deal.

The court (O'Connor opinion) decides that this policy presents a strict scrutiny question but then upholds it. That's pretty revolutionary. I've only read two cases before that did that, including Korematsu. The Court itself only cites two (one that I'm not familiar with) cases directly to refute the idea that strict scrutiny isn't an automatic death sentence for a law; that itself tells you something. When a court wants to support a controversial point of law, they usually cite the hell out of it. They couldn't because surviving strict scrutiny is big news and doesn't much happen.

So the policy survives. Why?

1. The court ruled that educational diversity is a compelling interest. Not may be, but is; they specifically rule that the court ought to defer to the judgment of educational professionals on this point. Big news, and IMO mostly good news. The court, in reaching that conclusion, gives substantial weight to amicus briefs submitted by industry and military employers that argue that promoting diversity is a Good Thing.

2. It finds that a nondeterminative racial preference system is not a quota system. That's big because it avoids the Bakke prohibition on quotas and helps it over the "narrowly tailored" hurdle. It also allows the Court here to distinguish the law school admission plan from the one overturned in Gratz.

3. It ruled that the plus-factor system used here did not hurt any other group, namely honkies. So the Court finds that the system is individualized and not based on group acceptance, and therefore is ok.

More to come, including my analysis of the brand new decision overturning Texas' sodomy laws.