Comments on: Is the End Near for Affirmative Action?

By: Wednesday round-up : SCOTUSblog

Wednesday round-up : SCOTUSblog — Wed, 19 Jan 2011 15:04:17 +0000

[...] Sacks at First One @ First addresses the Fifth Circuit’s recent decision upholding the University of Texas’s [...]

By: Joe

Joe — Wed, 19 Jan 2011 14:09:56 +0000

Kennedy’s concurrence in Parents Involved supported some race conscious programs. It would be nice if Kennedy could find SOME example that he can support. Some thought that was the reason they took two cases the last time — a possibility of splitting the baby. If they want to overturn Grutter, which is quite possible, the SC should find some case to show what is legit. If not, lower courts will continue to have to look through the tea leaves to find just what dodge is acceptable to Kennedy.

By: LLL

LLL — Wed, 19 Jan 2011 03:57:53 +0000

I’ll admit I have not read the opinion and I’m sure doing so would answer this question, but instead I’ll just ask you. How does UT use race/diversity in making admissions decisions? It seemed to me the Court made a distinction between Grutter and Gratz based on whether race was used holistically to make admissions decisions. If done so here, the Court would have to, as you’ve pointed out, explicitly overturn Grutter and affirm that it was a wrongly decided case. I am not sure I buy that the decision in Parents Involved will give us too much insight. Obviously Scalia and Thomas will seek to overturn Grutter. I think it is possible it can be saved with a carefully written decision that includes Kennedy in the save affirmative action bloc. I don’t think he’s ready to overturn it, I think he just didn’t care for the way the Court answered the Grutter question.

You are absolutely right – this will be a fun development to watch.