In their desire for the establishment of a national standard for the use of race in admissions, attorneys general from 10 states and a U.S. commonwealth recently filed an amicus brief in Grutter v. Bollinger et. al. requesting the Supreme Court hear the Law School admissions case.
The Oct. 29 brief came from Alabama, Delaware, Nebraska, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, West Virginia and the Commonwealth of Northern Mariana Islands in the northwest Pacific and was filed on behalf of Barbara Grutter, who claims she was wrongfully denied admission to the Law School in 1997.
The states are asking the Supreme Court to grant cert, or hear an appeal, of the U.S. 6th Circuit Court of Appeals’ ruling in the Grutter case. The states do not necessarily want the appellate court’s decision reversed, but rather want the Supreme Court to update its 1978 decision in Regents of the University of California v. Bakke, where it ruled diversity to be a compelling interest in admissions. The states claim there currently is no clear standard for the use of race as a factor in admissions, and that the scenario in Grutter provides the Court with an opportunity to clarify the issue.
Curt Levey, director of legal and public affairs for the Center for Individual Rights, the Washington-based law firm representing Grutter, said the recently filed brief is important because it is written by a group of people to whom the use of race in admissions is very important.
He said members of the states represented in the brief are unsure how to proceed on the issue and are asking the Supreme Court for clarity, which makes it more probable the Court will decide in their favor.
“This isn’t someone coming with an axe to grind,” Levey said.
He added he doesn’t think anyone who is being academically honest can deny that the country is in need of a new Supreme Court standard regarding the use of race in admissions.
“Even (the University of) Michigan doesn’t think that precedent from Bakke is clear,” Levey said.
Although amicus briefs filed at this stage in proceedings usually do not have much of an effect, he said this brief makes a powerful argument.
“If I would pick one that would have effect, this would be it,” Levey said.
“It takes a case that was likely to get cert and makes it more likely.”
Jonathan Alger, University assistant general counsel, said the fact that the University has not had any amicus briefs filed on its side at the cert stage does not reflect a lack of general University support.
“There is nobody on our side that has filed an amicus brief because we haven’t asked anyone to,” he said, adding that the University had support in the lower courts from a broad array of institutions and corporations.
Alger said if the Supreme Court does grant cert, the University plans to request amicus briefs to be filed on its behalf.
“It’s much more important when you’re dealing with the merits of the case,” he said. “Right now it’s just a (procedural) question of whether the Supreme Court will review the case.”
Alger said it was important to note that in filing their brief on behalf of Barbara Grutter, the states were not necessarily agreeing with her on the merits of the case
“In fact, I expect quite the opposite,” he said, adding that any group requesting cert would at this stage have to file on behalf of Grutter.
The Supreme Court has yet to rule whether it will hear either the case facing the Law School or that facing the College of Literature, Science and the Arts, which is still awaiting a decision in the 6th Circuit Court of Appeals.