Demonstrating the fairness, balance, objectivity, and competence we’ve come to expect from Higher Education these days, Mark Rahdert, a law professor at Temple, and Lawrence White, chief legal counsel of the Pa. Dept. of Education, discuss Justice O’Connor’s departure in today’s Chronicle of Higher Education.
They note that the current Court has treated colleges and universities very well. In fact, they are so pleased with how the current Court has treated them that they don’t even notice when they’ve lost, writing that “Grutter and Gratz are by no means the only recent cases in which colleges and universities have prevailed in the Supreme Court.” I’m sure it will come as a surprise to both the University of Michigan and to Jennifer Gratz — and, in fact, to anyone familiar with the case — to learn that Michigan “prevailed” in Gratz v. Bollinger.
Regarding a possible O’Connor replacement, Rahdert and White write that
Gonzales’s stock fell after the Supreme Court’s decisions two years ago in the Michigan affirmative-action cases; ardent conservatives criticized him for not taking a more intractable position against affirmative action in the administration’s friend-of-the-court brief.
If you ask me (of course, no one has) “conservatives” — that is, people who oppose discriminating on the basis of race — criticized Gonzales for his lack of a principled rejection of race preferences, not because he was not “more intractable.”
Similarly, they write that O’Connor’s opinion in Grutter “angered and energized die-hard opponents of race-based affirmative action.” I suppose from the heights of Mt. Academe any principled critic of race-based policies appears to be a “die-hard” opponent.
Indeed, so entrenched is higher academe in the moral rightness of its position that any criticism seems almost, well, disloyal, and this sense of almost royal entitlement leads Rahdert and White to an unacknowledged difference with their non-academic liberal fellow travelers. Most liberals reacted in anger to the Rehnquist Court’s use of sovereign immunity to shield state and local governments from discrimination suits by employees, but that is not the view from Mt. Academe. On the contrary, Rahdert and White are pleased that O’Connor and the Rehnquist Court recognized “the uniqueness of the nation’s colleges and universities,” and they are similarly pleased that the Court also recognized the “sovereign immunity” of those (presumably only public) colleges and universities.
Indeed, “sovereign immunity” does seem to sum up how Higher Education sees itself these days.
Unfortunately, the comment will most likely come as no surprise to the University of Michigan. They seem to think that if they don’t acknowledge that they lost my case, it didn’t happen.
Jennifer beat me to the punch, although, since I’m not an active plaintiff in the case, I’m probably more free to comment on it.
The public record shows that University of Michigan is arguing that, in fact, because Grutter created a permissable race preference regime, that if the Grutter holistic review had been in place ex post facto for Jennifer’s Undergraduate selection process “there would have been no difference in the outcome” for any individual members of the class certified as plaintiffs (the weaker version of this is the same old “statistical” impossibility in identifying individual victims since one can never be sure who was admitted), and hence, even though Gratz was lost, no money should be payed to Gratz class members. They are using what would have been a future decision (Grutter, 2003) to counter-justify past actions (1996 admissions) that were decided to be wrong in a separate simultaneous future decision (Gratz, 2003). Inventive, but not surprising.
So in a way, Grutter’s a foot in the door being used to argue that Gratz was never even lost. They’ve already started prying that door wide open – wait till their not in court and using the cases for policy in a completely free manner.
John, as to the sovereign immunity point, you’ve hit the nail on the head. Universities loved those [very bad] “conservative” opinions protecting state immunities – because there are so many universities that are legally part of one of the States. The door to unaccountability is opening – and even the tried and true conservatives like Scalia have helped open it in that way. The silver lining in this story may be that some states allow the people to take back their rights or hold schools accountable (and I’m talking in ways far beyond “mere” race preference) through initiative or other local means. I don’t think the Court appreciated how intertwined “States” have become with “quasi-state” actors, businesses and education hiding under the immunity shield, and other actors riding along.