The Roberts Court: The Struggle for the Constitution (9 page)

The Center for Individual Rights, a non-profit, libertarian public interest law firm, had challenged the Michigan policies. It also had taken the lead in challenging the use of a race-conscious admissions policy at the University of Washington—the same case that Michael Madden,
lawyer for the Seattle School District, was defending when the school district turned to him for advice on its school assignment plan. To this day, the center concentrates its efforts on getting “the government out of the business of classifying citizens by race,” among other goals.

The Michigan cases—
Grutter v. Bollinger
and
Gratz v. Bollinger
—were not the first time the Supreme Court had examined affirmative action in higher education enrollment. The Burger Court, in a highly fractured ruling in 1978, struck down what a majority found to be racial quotas in the admissions policy at the University of California, Davis, medical school. Allan Bakke, a white applicant who was twice denied admission to the medical school despite better grades and test scores than successful minority applicants, charged the school with reverse discrimination. The medical school reserved sixteen spots for minority students out of a total limited enrollment of one hundred annually.

Justice Lewis F. Powell Jr., the courtly, southern lawyer appointed to the Court by Richard Nixon, who was considered the center or swing vote on the Court, wrote what is known as the controlling opinion in
Regents of the University of California v. Bakke
. Racial and ethnic classifications of any sort, he said, are inherently suspect and call for the most exacting judicial scrutiny. The goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, he explained, but this special admissions program, which foreclosed consideration to persons like Bakke, was unnecessary to achieve that compelling goal.

Crucial to the pending Michigan cases was Powell’s view of a university’s compelling interest in a diverse student body. “This clearly is a constitutionally permissible goal for an institution of higher education,” he wrote. “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.”

And as a concurring justice, Harry Blackmun, wrote: “In order to get beyond racism, we must first take account of race.”

The high stakes in the
Bakke
case were reflected in the blizzard of amicus—friend of the court—briefs filed by civil rights, educational, medical, business, ethnic, law enforcement, and political organizations. Twenty-five years later, a similar blizzard engulfed the two Michigan cases in which the university and law school defended their admissions policies as narrowly tailored to achieve their compelling interest in a diverse student body.

On June 23, 2003, three days before the Washington Supreme Court ruled in favor of the Seattle School District, the decisions in the Michigan cases came down.

In the law school case, a 5–4 majority, led by Justice Sandra Day O’Connor, held that a diverse student body was a compelling government interest and that the law school admissions program was narrowly tailored to achieve that goal. The program used race as one of many factors, not the dominant factor, in an individualized review of each applicant.

O’Connor wrote: “In the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”

But a 6–3 majority, led by Chief Justice William Rehnquist, held that the university’s undergraduate admissions program failed the narrow tailoring test because it automatically assigned a number of points to a candidate based on the person’s race, which could determine admission, and the university did not give an individualized assessment of each applicant.

Anti–affirmative action activists viewed the Michigan decisions as a “total defeat,” and some in the movement said it would take a future and different Supreme Court to put teeth into the scrutiny of race-conscious programs that the Constitution demanded.

With the Michigan cases decided, the Louisville and Seattle lawsuits moved forward in the federal courts. In December 2003, federal Judge Heyburn held the trial in the Louisville lawsuit. That same month, the
PICS parents, having lost in the Washington Supreme Court, went back to the same three-judge, federal appellate panel that had ruled in their favor more than a year earlier.

Judge Heyburn, relying on the Michigan decisions, ruled against Crystal Meredith in late June 2004. The school board, he said, “meets the compelling interest requirement because it has articulated some of the same reasons for integrated public schools that the Supreme Court upheld in
Grutter
.” The board, he added, also identified other compelling interests and benefits of integrated schools, such as improved student education and community support for public schools. The student assignment plan also was mostly narrowly tailored, wrote the judge. “Its broad racial guidelines do not constitute a quota. The Board avoids the use of race in predominant and unnecessary ways that unduly harm members of a particular racial group.”

Meredith’s attorney, Teddy Gordon, promptly filed an appeal with the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio.

Over on the west coast, a month later, the three-judge panel in the Seattle lawsuit again ruled 2–1 against the school district, holding that use of the race tiebreaker violated the equal protection clause of the Fourteenth Amendment because it was not narrowly tailored to achieve the benefits of diversity. The school district sought review by the full Ninth Circuit and eleven judges on that court agreed to hear the case.

Both the Louisville and Seattle challenges were now on parallel tracks, and rapidly closing in on the Roberts Court, which itself was about to undergo dramatic change.

•  •  •

In June 2005, the two federal appellate courts, separated by roughly 2,000 miles, heard arguments in the Louisville and Seattle appeals. As all parties waited for the decisions, Justice O’Connor made the announcement that rocked the legal and political worlds. On July 1, she said she would retire from the Supreme Court.

Gordon, representing Crystal Meredith, recalled in a later interview
how thrilled he was by the O’Connor announcement. He told the
Louisville Magazine
in 2009, “I have this cliché that I say: Never underestimate the power of divine intervention.”
⁸

His elation at the news was based on two assumptions held by many at the time: one, that O’Connor, who had upheld the race-conscious admissions policy at the University of Michigan Law School, would be sympathetic to the school district’s assignment policy if the Louisville case went to the Supreme Court, as seemed likely; and two, that President George W. Bush probably would nominate someone more solidly and reliably conservative than O’Connor, who had disappointed and frustrated the most conservative elements of the Republican Party.

One thing was true: O’Connor, through her position as the Court’s center, had been the critical fifth vote for the victories—few though they were—of the moderate-liberal wing of the Court in abortion, church-state, campaign finance, race, and death penalty issues.

Justice Anthony Kennedy would assume the center position in most of the closely decided cases. More conservative than O’Connor, he would swing to the left less often. The real question, however, was who would replace O’Connor.

President Bush answered that question by nominating John Roberts. Two days later, the federal appellate court considering the Louisville school case ruled in favor of the school district in a brief, unsigned opinion affirming Judge Heyburn’s decision. Gordon filed a motion for a rehearing.

Louisville’s counterparts in Seattle still had no word on their case from the Ninth Circuit.

Throughout the summer of 2005, the White House, Senate Judiciary Committee Democrats and Republicans, and special interest groups across the political spectrum geared up for hearings on Roberts’s nomination. On August 29, Hurricane Katrina struck the Gulf Coast—the deadliest hurricane since 1928 and one of the five most destructive in American history. And on September 3, Chief Justice William H. Rehnquist died.

President Bush withdrew Roberts’s nomination as O’Connor’s successor and nominated him as chief justice. The Senate Judiciary Committee held hearings the week of September 12, and the Senate voted to confirm Roberts, 50, as the seventeenth chief justice of the United States on September 29, by a vote of 78–22. He was the youngest chief justice since John Marshall took the bench in 1801 at the age of forty-five.

“I didn’t factor in Alito.”

—Michael Madden, attorney for the Seattle School District, 2011

A
challenge to a school district’s integration plan already was waiting for the justices’ first look when the 2005–06 term opened, but it was not the Seattle or Louisville plan.

Over the past two decades, the city of Lynn, Massachusetts, had experienced a dramatic demographic shift. The city’s white population declined from 93 percent to 63 percent. That increased residential segregation. By the late 1980s, nearly half of the city’s eighteen elementary schools had greater than 90 percent non-white enrollment, and racial tension in the city was rising.
¹

The Lynn School Committee developed a voluntary, neighborhood-centered school choice plan with two goals: desegregation and diversity. The committee defined an elementary school as “racially balanced” if it had between 43 percent and 73 percent non-white students and between 48 percent and 68 percent for all other public schools. A school was “racially imbalanced” if the non-white student population was above those ranges; and if below, the school was considered “racially isolated.”

Students initially were assigned to schools in their neighborhoods. Race came into play when students or parents asked for a transfer from their local school. Any student could transfer between racially balanced schools. A student could transfer to or from a racially imbalanced or isolated school if the transfer would have a “desegregative” effect,
but not if the transfer further segregated the racially imbalanced or isolated school.

In 1999, the same year that Seattle’s Kathleen Brose and her group were fighting with their school board, a group of parents sued the Lynn School Committee. They charged that the race-based transfer system violated the Fourteenth Amendment’s equal protection clause.

A federal district judge upheld the transfer policy, ruling: “The value of a diverse classroom setting at these ages does not inhere in the range of perspectives and experience that students can offer in discussions; rather, diversity is valuable because it enables students to learn racial tolerance by building cross-racial relationships.” The parent group appealed and the full U.S. Court of Appeals for the First Circuit affirmed the district judge’s decision, holding that racial diversity was as compelling an interest in grades K–12 as the U.S. Supreme Court had found viewpoint diversity to be in higher education in the Michigan University cases. The court explained that in higher education, the emphasis is on the exchange of ideas, while the emphasis in primary education is on fostering interracial cooperation.

Chief Judge Michael Boudin, concurring in the decision, said that race-based classifications are usually unconstitutional, but, he added, the “Lynn plan is far from the original evils at which the Fourteenth Amendment was addressed.” A dissenting judge, however, said the use of race in the school plan was more mechanical and less flexible than the admissions policy that the Supreme Court struck down in one of the two Michigan cases.

The losing parent group filed a petition for certiorari (a petition seeking review of the appellate court’s ruling) in the Supreme Court on September 12, 2005. Sharon Browne of the Pacific Legal Foundation, who was also aiding the challengers to the Seattle and Louisville plans, filed an amicus brief supporting the group’s appeal to the justices.

The justices scheduled their first discussion of the Massachusetts petition at their Friday, December 2 conference. Three days later, they denied review, without comment.

The votes of four justices are required in order to grant review of a petition. For unstated reasons, the Court, which included Justice O’Connor, author of the
Grutter
decision upholding the race-conscious admissions policy at the University of Michigan Law School, did not have four votes. Or, the Court may have had four votes to hear the Lynn challenge, but not the five votes ultimately needed for a majority decision in the case.

“When you don’t have all the votes to overturn a race-based plan, maybe it was just as well Lynn wasn’t the case to take,” said Sharon Browne, who believed the Lynn plan was unconstitutional.
²
The Court’s decision not to take a case is no reflection on the merits of the appeal. It simply leaves the lower court’s decision in place.