Grutter Redux

The Supreme Court's decision today to take up the issue of race-based school assignment, just three years after Justice O'Connor's disappointing opinion in Grutter v. Bollinger, is good news for those of us who oppose the use of race in student selection. The cases accepted – Parents Involved in Community Schools v . Seattle School District and Meredith v. Jefferson City Board of Education – involve K-12 rather than Grutter's higher education context, and are unlikely to result in the overturning of Grutter's central holding that diversity is a "compelling interest" that can justify racial admissions preferences. It's too soon for such an abrupt reversal and, besides, the race-based student assignment plans at issue can easily be struck down within the Grutter framework. Nonetheless, today's cert grant likely signals that, with Alito replacing O'Connor, there are now five votes to 1) make it clear that the deferential treatment of racial preferences in Grutter was a one-time gift to affirmative action fans and 2) reign in the lower courts – such as the Ninth Circuit in Parents Involved and the Sixth Circuit in Meredith – that have interpreted Grutter as a virtual black check for the use of race in student selection.

Two years ago, I predicted that, despite Grutter's seeming 25-year blessing for the use of race in admissions, history would show that the decision was merely "a temporary and limited reprieve for race-based admissions policies." I am hopeful that the Court's decisions next term in Parents Involved and Meredith will be the first step in the fulfillment of that prediction.