Univ. Of Michigan’s Lawyer Asks Court To Reconsider…

“Who? Reconsider what?” you ask. The Who is Maureen Mahoney, the top flight Washington lawyer who defended (successfully, alas), in Grutter, the University of Michigan law school’s use of racial preferences.

For the What, you’ll have to look at this fascinating article in today’s Washington Post. It’s about a ten-year old case about to be heard by the Supreme Court for the second time having to do with a controversy between a small, expensive Christian prep school near Nashville and the Tennessee Secondary School Athletic Association over whether or not a letter from the football coach to 12 students who were entering the school the following term amounted to illegal “recruiting.”

Believe me when I tell you that you’ll probably find this article interesting even if you don’t give a fig for high school football or small, expensive Christian prep schools. What I find interesting about the article, however, and want to bring to your attention has nothing to do with either. It has to do with the fact that the attorney of the TSSAA is Maureen Mahoney, who argued Michigan’s case for racial preferences in Grutter.

First (and the less interesting of the two items I want to mention), in Grutter Michigan made a big argument about its academic freedom to discriminate (recently echoed here), but in this case Ms. Mahoney argued that Brentwood Academy “waived its First Amendment rights by agreeing to join the TSSAA.” (This prompted Justice Ginsburg to ask when the Court first heard this case whether the TSSAA “could exclude girls from varsity sports.”)

Michigan, of course, can’t be held responsible for what its hired private attorney argues in another case, nor is there any obligation on attorneys to be consistent in their arguments from one case to another (assuming there is an actual inconsistency here). Still, I find this cavalier dismissal of a constitutional right more fundamental than academic freedom to be noteworthy. (Brentwood Academy argues, you will have gathered, that a quasi-state agency telling its staff what it can and cannot say to students, including admitted students planning to enroll next term, violates its First Amendment rights. It also argues that such communication can’t be “recruiting” because the students had already signed contracts to enroll.)

Even more interesting, however, than the argument that Brentwood Academy must choose between enjoying constitutionally protected academic freedom and fielding a football team is the following, which was little more than an aside in the article:

Mahoney also is asking the court to take the unusual step of reconsidering its decision in the first Brentwood case decided just six years ago. Since then, Justice Samuel A. Alito Jr. has replaced O’Connor, who gave the court majority its crucial fifth vote [in favor of Brentwood Academy].

The article did not mention the grounds offered by Ms. Mahoney in support of her request that the Court reconsider its earlier opinion, but many of us are keenly aware that the now departed Justice O’Connor also provided the crucial fifth vote in favor of Michigan’s right to discriminate. Now any future litigant hoping to reverse Grutter can cite Michigan’s own lawyer in that case for the propriety of asking the Court to reconsider a recent, controversial decision.

Say What?