Oregon State Bar Bulletin — APRIL 2003

Déjà Vu, All Over Again
Revisiting past controversies
By Jeff Bleich and Pratik Shah

Lawyers and non-lawyers alike know the names and holdings of certain landmark Supreme Court decisions from the last 25 years. A white student is denied admission by a graduate school of a competitive state university that employs affirmative action for members of under-represented racial minorities in its selection process. University of California Regents v. Bakke (1978) (racial preferences in school admissions do not violate federal law if narrowly tailored to serve a compelling state interest). A state prosecutes two males for engaging in sodomy in the privacy of their home. Bowers v. Hardwick (1986) (federal constitutional right to privacy does not extend to homosexual sodomy). State prosecutes a group of teenagers for burning a cross in an African-American’s yard. R.A.V. v. City of St. Paul (1992) (statute criminalizing the act of cross-burning violates the First Amendment).Actually, these aren’t the names of the cases being described, and there are no holdings yet in any of them. All of these familiar fact patterns are up before the Court this term with new names. In each case a key issue is what the Court actually meant in its earlier decision involving the same facts. In the most literal sense, these cases will require the Court to decide now what it thought it decided before.

In each of the earlier cases, the Court left enough unanswered to prevent shutting the door on any of those questions. This may have been due to the sensitive nature of the issues and the fractured nature of the justices’ views. By granting review this year, the Court may be indicating that it is looking to slam some doors shut or open entirely new ones. One way or another, the recent grants of certiorari appear to signal that the Court is ready to speak with greater finality on these issues. Here’s a closer look at the new incarnations of some familiar cases, how they resemble and differ from their prior versions, and the possible changes these cases could bring.

Affirmative Action
Given the unclear mandate of the Bakke decision, perhaps the least surprising grant of certiorari of this group is that in the University of Michigan affirmative action cases from the 6th Circuit: Grutter v. Bollinger and Gratz v. Bollinger. The Court has already shown that it wished to decide this issue a few terms ago, granting cert in Taxman v. Piscataway Bd. Of Educ. (3d Cir. 1996); but the parties thwarted that effort by settling on the eve of oral argument. As a result, since Bakke, the Court has given lower courts little help in the unenviable task of discerning the controlling holding of Bakke and applying it.

Under review in Bakke was the two-track admissions process used by the Medical School of the University of California at Davis in 1973 and 1974. The regular admissions program required a minimum grade point average (GPA) and evaluated interviewed candidates based on their GPA, MCAT scores, letters of recommendation, extracurricular activities and other biographical data. Under the special admissions program, available primarily to disadvantaged applicants of color, candidates did not have to meet the grade point average cutoff and, though evaluated in a similar manner, were not ranked against candidates in the regular process. Sixteen out of 100 students in the class were to be admitted from the special process each year. All those admitted under the special program were people of color, and at least some of them had GPAs and test scores significantly lower than that of Bakke, an unsuccessful white applicant.

The Bakke opinions were destined to sow confusion. There were six opinions in Bakke, none of which was supported in full by more than four justices. Justice Powell, announcing the Court’s judgment that Bakke be admitted but writing only for himself, concluded that Title VI of the Civil Rights Act of 1964 only proscribes those racial classifications that would violate the Equal Protection Clause; that the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances; but that the medical school’s special admissions program was not necessary to achievement of racial diversity and was therefore invalid under the Equal Protection Clause. The only substantive part of the Powell opinion joined by a majority of the Court was the narrow paragraph holding that 'the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.' Whatever this section means, it did not purport to identify the precise substantial interest served or exactly how much consideration of race is acceptable. The four justices who joined that statement — Brennan, White, Marshall and Blackmun — justified the medical school’s use of race as a sufficiently important purpose on remedial grounds: that is, it helped overcome discrimination causing a chronic minority underrepresentation in the medical profession. There was no fifth vote for Justice Powell’s diversity grounds. Further, the four justices who believed remediation was a valid interest applied intermediate (rather than strict) scrutiny to the medical school’s use of race. Writing for the other four justices (who agreed with Powell’s result but not his reasoning), Justice Stevens concurred in the judgment, but only insofar as it affirmed the lower court’s judgment ordering Bakke admitted to the medical school. These four justices would not have reached the issue of whether race can ever be a factor in an admissions policy and would have found that Bakke was excluded from the medical school in violation of Title VI, rather than deciding the constitutional question under the Equal Protection Clause.

If the ultimate holding(s) in Bakke seem unclear, you are not alone. For example, while the 5th and 11th circuits have found that Justice Powell’s opinion did not resolve whether racial diversity was a compelling interest, the 6th and 9th circuits have concluded that Justice Powell’s diversity rationale constitutes a holding of the Court. Further, the lower courts have split regarding how much the nature and weight of the preference bears on the question of whether the program is narrowly tailored.

The most recent affirmative action programs to be challenged are those implemented by the University of Michigan, both in its undergraduate program and law school. Focusing on the law school, the facts — to quote Yogi Berra — are 'déjà vu all over again,' at least until the particulars of the respective admissions programs are examined. In Grutter, a white female, Barbara Grutter, was denied admission to the University of Michigan law school, and claimed that she had been discriminated against on the basis of her race in violation of Title VI and the Equal Protection Clause. Michigan’s law school admissions policy describes 'a commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers,' and that such students 'are particularly likely to have experiences and perspectives of special importance to our mission.' Although the law school considers race in seeking to enroll a 'critical mass' of underrepresented minority students, it does not set aside a set number or percentage of seats as the medical school did in Bakke.

Because it is framed as a challenge under both the Equal Protection Clause and Title VI of the Civil Rights Act (like in Bakke), the Bollinger cases will likely force the Court to address squarely whether Justice Powell’s diversity rationale actually constitutes a compelling interest. Further, if the Court adopts Justice Powell’s view (something that few court-watchers expect), it will also have to define what it means for an affirmative action program to be narrowly tailored to the goal of diversity. This second step will raise more hard questions: First, is the law school’s aim of admitting a 'critical mass' of underrepresented minorities sufficiently distinct from the 'quota' rejected by Justice Powell in Bakke? Second, what are the constitutional limits on the weight of the 'plus'-factor (borrowing Justice Powell’s terminology) attributed to an applicant’s race? Counsel for Grutter will likely emphasize that data reveals a large disparity in GPAs and LSAT scores between underrepresented minorities and others, which would suggest that minority applicants are receiving more than a mere 'plus.' Counsel for the University, however, may counter that the disparity if anything shows only the vital need for affirmative action, since absent meaningful consideration of race, the number of minority students who could contribute to a diverse educational environment presumably would be much lower. When it comes to admission to top law schools, which hold the keys to the realms of public policy and governance, the justices may find that either way they decide the question, they could be seriously affecting educational policy and equal opportunity.

Advocates of affirmative action probably have good reason to be nervous. If the ordinary liberal-conservative split were to apply — meaning that the liberals would need to attract either Justice O’Connor or Kennedy to prevail – the chances for a decision favoring affirmative action are slim. Both Justice Kennedy’s and Justice O’Connor’s votes in the most recent affirmative action cases — Croson, Metro Broadcasting and Adarand — reflect great skepticism of affirmative action and a desire to apply strict (albeit not 'fatal') scrutiny to any race-based program. But, even if either Justice O’Connor or Justice Kennedy votes to uphold the program, Justice Stevens could leave the liberals one vote short. After all, in Bakke he authored the opinion (joined by Chief Justice Rehnquist, the only other member from that term still serving) finding that the medical school’s admissions process violated Title VI, and that thus there was no need to reach the equal protection question.

Homosexual Sodomy
As in Bowers, Lawrence v. Texas involves a challenge by two men to a state law criminalizing sodomy. In Bowers, the Court, by a 5-4 margin, rejected the contention that homosexual activity, even among consenting adults in the privacy of one’s home, is a fundamental right under the Due Process Clause of the 14th Amendment and thus largely beyond the reach of state regulation. Although petitioners in Lawrence ask the Court to overrule Bowers, many doubt that the current Court would dispense with stare decisis and now deem homosexual conduct to be a fundamental right under the Constitution. This is particularly true since the fundamental rights analysis at issue involves a historical component that is supposed to be divorced from current social changes.

But despite the concern that Bowers will survive, the statute in Lawrence lends itself to a new set of legal challenges. The Bowers Court construed the specific challenge before it as one limited to consensual homosexual sodomy, even though the statute in Bowers criminalized sodomy irrespective of the genders of the participants. The criminal statute at issue in Lawrence, however, only applies to people who engage in sodomy 'with another individual of the same sex.' Therefore, petitioners can bring a facial challenge to the Texas sodomy statute under the Equal Protection Clause: it prohibits a Texas man from engaging in the same act with a man that a Texas woman can lawfully engage in. Although petitioners argued in the lower courts that the statute effectuates a gender-based classification (petitioners would not have been convicted if one of them was a woman), the argument made to the Court will focus on the distinction drawn between homosexual and heterosexual sodomy as discrimination based on sexual orientation. While such discrimination is typically subject to only rational basis review under the Equal Protection Clause, the Court stated in Romer v. Evans (1996) that laws that disadvantage homosexuals violate equal protection when born of animosity toward that group. The deciding factor will likely be whether the Court finds that the line drawn by the Texas statute — incidentally a line not drawn until the 1970s when the general sodomy laws were repealed — is justified by the state’s invocation of 'moral standards' and 'family values,' or whether it is viewed as an illegitimate expression of animus towards homosexuals.

At the time of Bowers, 24 states plus the District of Columbia still had sodomy laws. Since then, half of those jurisdictions have legislatively repealed or judicially invalidated those laws, including several same-sex-only sodomy laws. Today, only 13 states still criminalize consensual sodomy between adults and just 2 states (including Texas) currently have same-sex sodomy laws in full force and effect. Following this trend, combined with increasing societal tolerance toward homosexuality and the presentation of a distinct (and perhaps more palatable) legal theory, the Court might be inclined to come to a different conclusion than it did in Bowers. Although two of the current justices — Rehnquist and O’Connor — were in the Bowers majority, perhaps the option of prohibiting a state from singling out homosexual sodomy for criminal punishment, without having to declare such conduct a fundamental right under the Constitution, could provide a new middle ground for the Court.

Finally, the free speech issue in Virginia v. Black, the current cross-burning case, brings to the forefront a decision by the Court from just a decade ago; indeed, all but two of the members of the Court from the earlier R.A.V. decision are still on the Court today. Ordinarily, this might indicate a belief that those who were in the minority before think changes in the Court’s composition might yield a different result. However, it is unlikely that either Justice Breyer or Justice Ginsburg would vote differently than their predecessors. Rather, the Court’s decision to grant review may signal that one or more justices (including possibly Justice Thomas) is inclined to further refine their earlier views after seeing the R.A.V. decision applied in the lower courts.

In R.A.V., the petitioner was charged under the city’s Bias-Motivated Crime Ordinance after allegedly burning a cross on an African-American family’s lawn. That ordinance criminalized the placement of any symbol, 'including, but not limited to, a burning cross or Nazi swastika, which one knows … arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.' Writing for the Court and joined by Chief Justice Rehnquist, Justice Kennedy, Justice Thomas and Justice Souter, Justice Scalia held that the ordinance was facially unconstitutional because it imposed special prohibitions on those speakers who express views on the disfavored subjects of 'race, color, creed, religion, or gender,' while still permitting displays containing abusive invective if they are not addressed to those topics. The majority notably added: 'Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.' The other justices (including Justices O’Connor and Stevens), though concurring in the judgment on 'overbreadth' grounds (because the statute criminalized not only unprotected expression but also expression protected by the First Amendment), disagreed with the majority’s 'underbreadth' analysis and generally sanctioned restrictions on cross-burnings that pose a threat to individuals as permissible under the First Amendment.

In Virginia v. Black, the defendants were also prosecuted for cross-burning, but under a different statute that makes it unlawful for persons 'with the intent of intimidating any person or group of person, to burn … a cross on the property of another, a highway or other public place.' The Virginia statute appears narrower than the St. Paul statute in some respects yet broader in others. It is narrower because the statute only proscribes cross-burning performed with the intent to intimidate others, rather than the placement of any symbol that one knows could cause anger, alarm, or resentment. For the concurring justices from R.A.V. (Stevens and O’Connor), this statute thus might not pose the same overbreadth concerns as the prior statute did. The current statute is broader, at least facially, in that it does not expressly limit the basis of proscription to selected subjects such as race or religion. Whether this statute is still found to raise underbreadth concerns — because it selectively targets just cross-burning — similar to those considered fatal by the majority (all five of whom are still on the Court) in R.A.V. could be the decisive legal factor.

If oral argument is any indication, Justice Thomas might be the driving force behind re-addressing an issue confronted by the Court just 10 years ago. Justice Thomas, usually quite reticent at oral argument, poignantly characterized the burning cross as the symbol — unlike any other symbol in our society — of the 'reign of terror' in the South, whose sole purpose was not to communicate but to 'cause fear and to terrorize a population.' Whether he is willing to distinguish or modify his view in R.A.V. remains to be seen, but, if so, he could be one of the five justices from the R.A.V. majority who vote to save this statute.

Just when you thought the Supreme Court was starting to recede from the limelight of Bush v. Gore and primetime television series, it has decided to reconsider the hot-button issues of affirmative action, homosexual sodomy and hate crimes. On one extreme, the decision to hear these cases could reflect only an entrenchment of the Court’s majority: reflecting a desire to eliminate lower court efforts to navigate around the results in Bakke, Bowers and R.A.V. On the other extreme, the grants of certiorari could be a sign that the Court is ready to reshape some of its earlier jurisprudence. Regardless of where one falls on the spectrum of judicial philosophy, this term promises to be more than just a remembrance of things past, but a memorable one in its own right.

Jeff Bleich is a litigation partner at Munger, Tolles & Olson in San Francisco and currently serves as president of the Bar Association of San Francisco. He clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Bleich is a frequent contributor to the OSB Bulletin, in addition to his bar association’s San Francisco Attorney magazine. Pratik Shah is a litigation associate at Munger, Tolles & Olson, and will be clerking for Justice Stephen Breyer on the U.S. Supreme Court beginning in July. Together Bleich and Shaw authored an amicus brief on behalf of various Latino organizations in support of the University of Michigan’s admissions program in Gratz v. Bollinger, et al.

© 2003 Jeff Bleich

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