(Part 2) Supreme Court's New Term: Headliners & Possible Blockbusters

Let's now turn our attention to 3 other important appeals already on the Court's docket this new term.

We previously looked at 3 cases dealing with campaign finance, abortion clinics, and town prayer in the last post. That first set of cases all involved First Amendment issues. This next group raise diverse constitutional claims: equal protection, search & seizure, and presidential power.

Affirmative Action (Schuette v. Coalition to Defend Affirmative Action)
This case involves a state law that forbids racial preferences--but forbids no others--in college admissions.

Ever since its split decision in the 1978 Bakke case, the Court has struggled with racial preferences in higher education, as well as in other contexts. Justice Lewis Powell cast the swing vote in that case. Race was permissible as one plus factor, among others, in evaluating an application for college admissions.

Then, in its 2003 Grutter decision, Justice Sandra Day O'Connor--who had replaced Powell as the Court's swing vote--similarly cast the deciding vote. Racial preferences were acceptable to promote the "compelling" educational interest in diversity.

This past June, the Court issued its latest decision about affirmative action in higher education admissions. The vote in the Fisher case was 7-1. (Only 8 votes because Justice Kagan did not participate.) But that numerical division fails to reflect the deep differences among the Justices. It only represents near unanimity on a single point: any use of race in making decisions must first be justified by some compelling purpose that could not otherwise be achieved.

So, would racial preferences actually be permitted under those circumstances? If yes, would permissibility be based on the Justices' own view of compelling educational needs? Or those of the educational institution or of education experts? In this regard, it is notable that Justice Samuel Alito has replaced O'Connor, and he seems much less sympathetic to a need for affirmative action.

With that in mind, consider that the Court has chosen to review yet another affirmative action case this term. And it's a case in which supporters of affirmative action won in the federal appeals court below.

The Schuette case involves a Michigan provision--adopted directly by the voters--that bans any consideration of race in college admissions. The provision was adopted following the previously mentioned Grutter decision which had upheld the University of Michigan's race conscious program.

Preferences of all sorts in college admissions were left untouched by the provision. Legacies, athletics, geography, birthplace, family gifts, etc., etc., etc. They may still be used. Only race (and gender)--even if necessary to achieve a purpose deemed compelling--is forbidden.

May the voters of a state remove racial preferences as a factor in decision-making on college admissions? Even if those preferences are singled out (with gender only) for elimination?
[This discussion was edited for correction subsequent to the date of posting in order to note that gender preferences were outlawed as well those for race.]