What can be said has been said and what can be argued has been argued. The future of race-conscious admissions policies has officially been turned over to the nine U.S. Supreme Court justices, who will meet tomorrow to discuss the cases and take an initial vote on where they tentatively stand.
“Frankly, there is not a lot to do, other than wait,” Center for Individual Rights spokesman Curt Levey said. “We think we made strong arguments yesterday. Other than that, it’s out of our hands.”
For the last 25 years, colleges have strived to work by the principles set forth in a 1978 U.S. Supreme Court decision. The court, in Regents of the University of California v. Bakke, allowed universities to use race as one of many factors in admissions.
Although lower courts in some circuits have overturned Bakke, the opinion still stands over most of the nation. Whether it will continue to hold will not be known until the current justices release their opinions on Grutter v. Bollinger and Gratz v. Bollinger.
While legal experts are divided on the predicted outcome of the lawsuits against the University, they all agree that those awaiting the decision should mark their calendars for the last day of the court’s session.
Although that date has not been set, the court normally adjourns itself for the year at the end of June or the beginning of July.
“My sense is that we won’t get a decision until the very last day of the term. That’s typically the way it works – the most controversial cases are the ones the court takes the longest on, and this is a late argument as it is,” Georgetown University law Prof. David Cole said, adding that it is unlikely the court will wait until it reconvenes in October to release its decision.
“It’s always possible, (but) they haven’t done that in a long time.”
“It’s very often the biggest cases, the most important and celebrated cases are not decided until the very end of June or July,” said University of California at Los Angeles law Prof. Kenneth Karst, agreeing that the court will present its decision this summer rather than holding it for the new term. “I would be very surprised if they did that, partly because there may be some retirements at the end of this term.”
While the public has nothing to do but wait, the Supreme Court justices will be spending the next three months deciding whether to draft concurring opinions or join the majority or dissenting opinions.
Karst said the majority opinion will likely be drafted by Chief Justice William Rehnquist, a staunch conservative who has said he opposes using race in admissions, or Justice John Paul Stevens, a senior member of the court who is expected to decide in favor of the University.
Though they are reluctant to speculate, experts are already debating the possible content of those opinions, as well as the possible divisions among court members.
What many experts do agree on is that the outcome does not look favorable toward the undergraduate policies.
“I think there are four votes to support the Law School’s program and three votes against both programs,” said Susan Low Bloch, a Georgetown law professor. “I would predict either they uphold the law program and strike down the undergraduate program, or that they will say you can use race, but these are not narrowly tailored.”
But Wayne State Law School Prof. Robert Sedler disagreed, stating that the court will want its decision to be all-encompassing and not focusing on just the University’s policies.
“It does not want the current situation, with divisions between the circuit (courts),” Sedler said.
Bloch said Justice Sandra Day O’Connor’s concern over the apparent limitlessness of racial preferences may indicate that the decision will not completely favor the University.
Though O’Connor suggested she agreed with the (ITAL) Bakke (ITAL) decision, she “expressed concern over whether affirmative action had any end point, had any termination point. She was expressing the concern that it may last forever, which she was clearly uncomfortable with,” Cole said.
Another reason that experts are predicting a loss for the undergraduate case is Justice Anthony Kennedy’s statement that the policy looks like a “disguised quota.” But Kennedy also expressed his willingness to allow universities to use race as a factor in admissions. He asked University lawyers whose job it would be to come up with a more individualized – as opposed to race-neutral – admissions process, should the court rule against the University’s policies.
“It’s not impossible that you would see a 6-3 decision. I can imagine a scenario where you would have a court strike down the undergraduate case by 6-3, but upholding the Law School program, also by 6-3,” Karst said.
If the court rules in favor of the University, the debate surrounding race-conscious admissions policies will most likely continue far into the future, experts said. Levey added that future lawsuits would be likely in that scenario.
Whatever the prediction, come June, all eyes will once again be on the Supreme Court.
“You can’t really tell from oral arguments what is going to happen. I’ve had it happen many times where a justice will ask a question and I’ve thought, ‘Ah-hah, I know how he will vote,’ and then he doesn’t do it that way,” Karst said.
Even after the court rules, a change in the court’s makeup could allow a reconsideration of the issue, he said. “As Yogi Berra said, ‘It’s never over ’till it’s over.’ And this one is going to be an object of contention for a long time.”