Stanford University president John Hennessy was quoted in today’s Stanford Daily acknowledging that if the Supreme Court “simply rules that the University’s specific technique is impermissible, there will be little or no effect.”
Right. Such a ruling would leave in place Bakke’s famous “plus factor” loophole, which has never seen a racial preference it didn’t like.
“Right. Such a ruling would leave in place Bakke’s famous ‘plus factor’ loophole, which has never seen a racial preference it didn’t like.”
Except that it has met one such preference, in the Bakke case itself. Also, I’m not aware of any Supreme Court cases in the interim where any preference system has actually been upheld under that standard, so if the SC strikes down the preferences in both Gratz and Grutter, it will still mean that while racial preferences may be allowable in theory, university preferences in practice will be 0 for 3.
None of this really matters in my view, as the odds of Bakke being reaffirmed lie somewhere between slim and none. I haven’t followed justice Stevens’s opinions closely enough to know if he has softened his opposition to preferences since Bakke, but even if he has, my bet is that there are are five others who haven’t. The only reason I’m not absolutely certain about the outcome in these cases is that the oral arguments are scheduled for April Fool’s Day.