Isn’t it past time that Martin Luther King’s dream be recognized?
Monday was a banner day in jurisprudence: On that morning, the Ninth Circuit Court of Appeals — the most overturned Court of Appeals in the nation — actually got one right.
In a ruling that relied more on precedent than on new analysis, the court’s three-judge panel determined that California’s ban on the use of race as a criterion in college admission was constitutional (both under the state and federal constitutions), notwithstanding that ending affirmative action caused a 50 percent drop in the number of minority students enrolled at UC Berkeley and UCLA.
The court addressed this same question in the 1997 case of Coalition for Economic Equity v. Wilson. In that opinion, in which they originally found the ban on affirmative action constitutional, the court was told that ending race-based admissions would cause a dramatic drop in minority enrollment. Thus, making the argument in 2012 that such a drop did indeed happen does not change the analysis.
The judges’ ruling was essentially that they are not permitted to overturn the decision of a prior panel of the court given that the facts are essentially unchanged.
The opinion was forceful, including dismissing the plaintiff’s claims with prejudice, meaning they cannot be brought back to court, because “it is clear, upon de novo review, that the complaint could not be saved by any amendment.”
The California plaintiffs tried to base their claims in part on a 2003 Supreme Court case called Grutter v. Bollinger, in which a 5-4 majority comprising four liberals and Sandra Day O’Connor said that the University of Michigan Law School’s use of race as a factor in admissions was permissible. (It was an unusual decision because it was made simultaneously with a 6-3 opinion — including O’Connor in the majority — in Gratz v. Bollinger, which invalidated the University of Michigan’s undergraduate admissions policy of awarding extra “points” to minorities in the school’s formula for admitting students.)
As the Ninth Circuit’s panel properly noted, “Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required.” (Emphasis in original.)
Grutter remains front and center because in February the Supreme Court agreed to hear a case called Fisher v. University of Texas at Austin in which (as in Grutter) a white student, Abigail Fisher, claimed to have been denied admission to the university because preference was given to less qualified minority students.
Last year, the Fifth Circuit Court of Appeals upheld a verdict by a Texas District Court finding for the University’s admissions policy and against Fisher. That ruling stood on the University’s argument that there are “educational benefits that flow from diversity” (as if Einstein’s Theory of Relativity or Black’s Law Dictionary cares about the skin color of the person trying to understand it).
Interestingly, and portending a serious weakness in the Fifth Circuit’s decision, their ruling concludes, “We are satisfied that the University’s decision to reintroduce race-conscious admissions was adequately supported by the ‘serious, good faith consideration’ required by Grutter.”
First, and understanding the difference between consideration and implementation, as the Ninth Circuit properly found, Grutter permitted race-based admissions but did not require them.
Second, the Fifth Circuit took the term “serious, good faith consideration” substantially out of context: In the Grutter decision itself, Justice O’Connor, writing for the majority, said that “narrow tailoring” — a characteristic of an admissions plan’s racial aspects required for them to be constitutional — “does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”
In other words, the Fifth Circuit implied that the Supreme Court mandated serious consideration of race-based admissions when they actually mandated serious consideration of race-neutral alternatives. While the Supreme Court’s decision in the case will not hinge on the Appeals Court’s getting the context of three words wrong, an undecided Justice may — even if subconsciously — be forgiven for wondering whether the Circuit ruling must be quite weak if they had to resort to rhetorical shenanigans to support it.
While President Obama has generally avoided questions on affirmative action, the Justice Department submitted an Amicus brief to the Fifth Circuit in support of the University’s admissions policy and its racial aspects.
By “granting cert” the Court is giving a strong hint that it may not only find the University’s current use of affirmative action goes beyond what Grutter allows, but may also overturn Grutter completely now that Sandra Day O’Connor has left the Court. Oral argument has not yet been scheduled, meaning the case may not be decided until June, 2013.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?