In “Affirmative Misconduct” yesterday, I discussed the bitter diversity divisiveness that has erupted on the Sixth Circuit Court of Appeals. An article in the Washington Post today has more details, but it also reveals some hitherto unknown, and potentially significant, information about the undergraduate preferences case that the Sixth Circuit had not decided when it was taken from them by the Supremes along with the law school case.
Yesterday’s uproar also revealed previously undisclosed details about the never-decided undergraduate case.
The nine judges who heard it at the 6th Circuit took a tentative vote after oral argument, and based on that, [Chief Judge Boyce] Martin, [who, controversially, assigned himself to the panel hearing the Grutter case and who may or may not have been responsible for delaying it five months, until two conservative judges retired] who favored the policy, undertook to write an opinion for the court. But the judge said yesterday that he was unable to secure the necessary five votes by December 2002, when the Supreme Court announced that it would take over the matter.
This likely means that at least one of the five 6th Circuit judges who voted for the law school policy, which aims to enroll a “critical mass” of African Americans, Latinos and Native American students, balked at the undergraduate policy, which awarded extra points to members of those groups on a 150-point scale used to rank applicants.
Might the Supremes render a similar split decision? Maybe. (I threw that prediction in at the end so that you would feel you’re getting your money’s worth for your subscription to DISCRIMINATIONS.)
I hope not. Such an outcome (an affirmance in Barbara Grutter’s case with a reversal in Jennifer Gratz’s case) would be a sore defeat for the anti-preference forces.
In effect, it would give the colleges a green light to use racial preference programs that convey large statistical bonuses on “preferred minority” students as long as they’re not really blatant about it. They will just need to tastefully blur the edges a bit by eschewing hard numerical quotas or explicit, fixed racial point bonuses, and saying instead that they’re ensuring a “critical mass” of preferred students.
Such a pair of rulings would enable the prestige schools to continue their current admissions practices more or less unabated.
I mean, Gratz is going to win in the Supreme Court, period. I have no doubt about that. The undergrad admissions program she challenged is a square violation of even Justice Powell’s Bakke opinion. The trial court’s opinion to the contrary was exceptionally unpersuasive.
So everything really turns on whether Grutter also wins. Even if the Court simply holds for Grutter on narrow-tailoring grounds (instead of holding that “diversity” cannot satisfy strict scrutiny), that would still be a significant victory. It would obligate most colleges to rein in their current practices to some degree.
Unfrotunately, it would also usher in a lot of further litigation. Nevertheless, I predict that is the result we’ll get.