Grutter Effects: Implications for "re-desegregation" of Public Education in Georgia?

• Citation: Vol. 22 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 22 , „

Article 3

Issue 4 Summer 2006

6-1-2006

Grutter Effects: Implications for "Re-desegregation" of Public Education in Georgia?

Christopher J. Sullivan

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Recommended Citation

Sullivan, Christopher J. (2005) "Grutter Effects: Implications for "Re-desegregation" of Public Education in Georgia?," Georgia State

University Law Review: Vol. 22: Iss. 4, Article 3.

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GRUTTER EFFECTS: IMPLICATIONS FOR "RE-DESEGREGATION" OF PUBLIC EDUCATION IN GEORGIA?

Introduction

In 2003, the Supreme Court held racial diversity is a sufficiently compelling interest for the University of Michigan Law School.¹ In Grutter, the Court upheld Michigan's decision to consider the race and ethnicity of applicants when determining admission.² The decision is having a nationwide impact on the way race influences educational decisions.³ Federal and state courts rely on the Grutter decision when evaluating the constitutionality of including race as a factor in determining which schools students attend.⁴ Additionally, universities mindful of their race-conscious admissions policies are grappling with this precedent.⁵

Since the 1960s, Georgia courts have been the site for litigation concerning school segregation and policy efforts to combat such segregation.⁶ Due to this and the emerging patterns of "de facto" segregation in Georgia's schools, Grutter is likely to have a considerable impact in Georgia.⁷

1. Grutter v. Bollinger, 539 U.S. 306,328-29 (2003).

2. Id. at 315-16,329-30.

3. See, e.g., Comfort v. Lynn Sch. Comm., 2004 WL 2348505, at *10-11 (1st Cir. 2004) (assessing how the Grutter decision affected race-conscious assignments of students in public schools).

4. See, e.g., McFarland v. Jefferson County Pub. Sch., 330 F.Supp.2d 834, 849-50 (W.D. Ky. 2004), offd 416 F.3d 513 (6th Cir. 2005) (discussing a federal district court's reliance on Grutter when evaluating a voluntary desegregation plan in the Louisville, Kentucky area); see also In re Petition for Authorization to Conduct a Referendum on the Withdrawal of N. Haledon Sch. from the Passaic County Manchester Reg'l High Sch. Dist, 854 A.2d 327,340-41 (N J. 2004) (relying on the Grutter decision to implement a state policy that actively prevents segregation).

5. See discussion infra Part III.B.

6. See Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1263-64 (11th Cir. 2001) (holding the University of Georgia's race conscious admissions policy violated the Fourteenth Amendment); Thomas County Branch of the NAACP v. City of Thomasville Sch. Dist, 299 F. Supp. 2d 1340, 1351-52 (M.D. Ga. 2004) (illustrating a recent charge of de jure segregation the court declared de facto); Hightower v. West, 430 F.2d 552, 552 (5th Cir. 1970) (evaluating the efforts of the Fulton County School System to comply with its desegregation order).

7. See infra Part III. The Supreme Court has identified "de facto" segregation in schools as that which comes not from legal, or "de jure" conditions, but from residency patterns developed outside of any legal compulsion. Swarm v. Charlotte-Mecklenburg Bd. of Educ, 402 U.S. 1,31-32 (1971).

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This Comment will assess the impact race will have on educational

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decisions in the post-Grutter era. Additionally, this Comment will evaluate what that impact means for Georgia as the state experiences demographic shifts that lead to racially identifiable public schools.⁹ Part I of this Comment explains the use of the Equal Protection doctrine when evaluating government use of racial classifications, illustrates the doctrine as applied in Grutter and Gratz v. Bollinger,¹⁰ and identifies the elements of Grutter likely to have the greatest impact on future cases.¹¹ Part II reviews the recent string of federal and state cases in which Grutter has a significantly impacted primary and secondary education. Part III discusses the history of desegregation in Georgia, the emergence of de facto segregation at all levels of education, and the changes wrought by Grutter}¹'

I. Grutter

A. Equal Protection Analysis Pre-Grutter: The Development of Strict Scrutiny

The Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws."¹⁴ When state actors, such as school systems, take action based on racial classifications, they must adhere to the Fourteenth Amendment's Equal Protection Clause.¹⁵ Despite the language of the Fourteenth Amendment, modern Supreme Court analysis allows government actors to differentiate by race when such "classifications . . . are narrowly tailored to further compelling governmental interests."¹⁶ Application of this test is what the Court refers to as

8. See infra conclusion.

9. See id.; see also Karen Shugart, BLACK AND WHITE: Education Again Turns Political as Schools Begin to 'Resegregate,' macon telegraph, Mar. 28,2004.

10. 539 U.S. 244 (2003).

11. See infra Part I.

12. See infra Part II.

13. See infra Part HI.

14. U.S. Const, amend. XIV, § 1.

15. Id.; see Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (explaining why courts are bound by the Fourteenth Amendment when scrutinizing government action based on racial classifications).

16. Gruffer, 539 U.S. at 326.

2006] grutter EFFECTS 1033

"strict scrutiny."¹⁷ Any race-based government action that fails this test is unconstitutional.¹⁸

Justice Black explained in Korematsu v. United States the genesis of the strict scrutiny test, noting that "all legal restrictions which curtail the civil rights of a single racial group [is] immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny."¹⁹ Applying that scrutiny, the Court upheld an executive order excluding Japanese-Americans from specified west

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coast military areas in response to the outbreak of war with Japan.

In subsequent cases, whenever the Court evaluated government use of racial classifications, it looked for the "furtherance] [of] compelling governmental interests" to justify their use. If it found such an interest, the Court then required the use of race be "narrowly tailored" to meet the government's objective.²² This strict scrutiny produced findings of equal protection violations in government action, ranging from interracial marriage bans to minority preferences in city contracting.²³ Korematsu represents the only time prior to Grutter that the Court found disparate race-based treatment to survive strict scrutiny.²⁴

Before Grutter, the Court's holding in Regents of University of California v. Bakke was the model for applying strict scrutiny analysis to racial classifications used in university admissions policies.²⁶ In Bakke, the Court addressed an admissions policy of the

17. Id at 326-27.

18. Id

19. 323 U.S. 214,216 (1944).

20. See id. at 218-24.

21. E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200,227 (1995) (explaining the application of strict scrutiny in the context of minority-preferenced contracting).

22. Id

23. See Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (applying strict scrutiny to Virginia's miscegenation law, concluding it violates the Fourteenth Amendment); see also City of Richmond v. J.A. Croson Co., 488 U.S. 469,511 (1989) (rinding the City of Richmond's use of a quota when handing out city contracts to minority-owned businesses violated the Equal Protection Clause).

24. See Grutter v. Bollinger, 539 U.S. 306, 351-53 (2003) (Thomas, J., concurring in part and dissenting in part); Korematsu, 323 U.S. 214.

25. 438 U.S. 265 (1978).

26. Id at 361-79.

Medical School of the University of California at Davis that effectively set aside 16 of 100 program slots for specified minority groups.²⁷ Justice Powell wrote the majority opinion for a split court that produced six separate opinions. The majority found the Medical School's program unconstitutional to the extent that it acted as a quota, but found that a school's diversity interest could be compelling provided the school considered diversity beyond the scope of race and ethnicity. As a result of the division among the Justices, courts following the Bakke decision struggled to evaluate the weight of the majority opinion, with some courts finding no binding precedent.³⁰

B. Grutter & Gratz: Constitutional and Unconstitutional Use of Race

Due to the difficulty lower courts had following the Bakke decision, the Supreme Court granted certiorari in a pair of cases to clarify if and when diversity in student populations could meet the compelling interest requirement of strict scrutiny analysis.³¹

1. Grutter: Compelling Interest + Narrow Tailoring = Constitutionality

In Grutter, the University of Michigan Law School's (Law School) admissions policy considered an applicant's race or ethnicity to be a "plus factor" if it indicated membership in a group that historically faced discrimination.³² The Law School explained that its goal was to acquire a "critical mass" of minority students, defined by the

27. Id. at 269-70,279.

28. Bakke, 438 U.S. 265 (1978).

29. See id. at 311-12,315.

30. Grutter v. Bollinger, 539 U.S. 306,325 (2003). Compare Bd. of Educ. of Borough of Englewood Cliffs, Bergen County v. Bd. of Educ. of City of Englewood, Bergen County, 608 A.2d 914, 945 (N.J. Super. Ct. App. Div. 1992) (relying on the majority opinion in Bakke to show that educational diversity was a compelling interest), with Johnson v. Bd. of Regents of the Univ. Sys. of Ga., 106 F. Supp. 2d 1362, 1369 (S.D. Ga. 2000) (finding Ba...