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November 21, 2007 - Image 14

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Publication:
The Michigan Daily, 2007-11-21

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Wednsda, Nvembr 2, 207 -TheMicig . iy 7

he 44 steps that lead
to the U.S. Supreme
Court are meant to
make passersby feel
that they exist in a sep-
arate world. In Jeffrey
Toobin's recent book
on the court, "The Nine: Inside the
Secret World of the Supreme Court,"
he explains that the architect of the
building wanted visitors to have a sym-
bolic experience on those steps - that
the walk up the stairs would symbol-
ize a "march to justice." Toobin writes
that the steps make it so the justices lit-
erally function on a higher plane.
But that doesn't mean what the
court does is impossible for students
to understand. Although the court has
historically seen universities as having
a special, autonomous role in our soci-
ety, that's not to say that the court has
not or will not affect higher education
- often with dramatic results.
On this campus, the words
"Supreme Court" incite a near-Pavlov-
ian response: "Gratz."
In 2003, the'court decided two land-
mark cases brought against the Uni-
versity, ruling that universities could
consider race as a factor in admissions
decisions, but barred the use of quotas
and rejected the point-based system
previously used by the University. The
court held that the Law School's admis-
sions policy was acceptable (Grutter v.
Bollinger) but that the policy used in
the College of Literature, Science and
the Arts, was not (Gratz v. Bollinger). In
Gratz, Chief Justice William Rehnquist
argued that the points system used by
LSA was unconstitutional because it
failed to achieve a "compelling inter-
est in diversity," violating the Equal
Protection Clause of the Fourteenth
Amendment.
The immediate effects of Gratz and
Grutter were that all universities with
admissions policies similar to the Uni-
versity's LSA policies would change. If
not, they could expect to see lawsuits
from rejected applicants. Universities
with policies that mirrored the Law
School's could rest easy.
The passage last November of Pro-
posal 2, which banned all affirmative
action programs in the state, trumped
the court's rulings as they applied to
the University of Michigan. But in the
Grutter opinion, Justice Sandra Day
O'Connor touched on something deep-
er and more lasting than admissions
policies. She addressed the court's tra-
ditional treatment ofuniversities, writ-
ing that there is a "tradition of giving
a degree of deference to a university's
academic decisions."
This tradition can be traced back to
1819, when the court decided Trustees
ofDartmouth Collegev. Woodward. This
was the first time the court addressed
the principle of educational freedom.
In Dartmouth, the attorney Daniel
Webster - a graduate of Dartmouth
College and a former congressman
from New Hampshire - fought for the
university's autonomy.Webster argued
against and defeated a New Hamp-
shire law that placed Dartmouth, a
private school, under state control.
Webster stirred the audience when he

University Law School students protest outside the Supreme Court building in 2003
proclaimed in front of the court, "It is, nin Scalia, have said they wish it never
Sir, as I have said, a small college. And happened.
yet there are those who love it!" In Sweezy, the court decided against
More than one hundred years later, prosecuting a professor atthe Universi-
Sweezy v. New Hampshire marked the ty of New Hampshire for his refusal to
first in a series of decisions during the answer questions regarding a humani-
last century that preserved freedoms ties lecture about the Progressive Party
in higher education. of the United States. Thus, Sweezy pro-
It was 1957 when the court decided tected professors' freedoms.
Sweezy. Earl Warren, appointed by Two decades later, Justice Felix
"Grutter is in keeping with our
tradition of giving a degree of
deference to a university's
academic decisions."
Former Supreme Court Justice Sandra Day O'Connor
in the Grutter v. Bollinger judgment

of Justice Samuel Alito and Chief Jus-
tice John Roberts, the court is shifting
to the right. There has been no indi-
cation that the court will abandon its
embrace of former Justice Sandra Day
O'Connor's concern about educational
autonomy. But some are worried.
Rutgers University General Counsel
Jonathan Alger said the; e is concern
about the court under Roberts and its
attention to continuing inequalities
and the importance of diversity.
In late June of this year, the High
Court restricted the freedoms of pub-
lic school districts to use race-based
admissions policies inParents Involved
in Community Schools v. Seattle School
District and Meredith v. Jefferson
County Board ofEducation. Grutter was
not overruled - the court specifically
stated that the university context is
unique and will not be affected by this
decision.
In cases like Parents and Meredith,
where academic freedoms may be at
stake, Alger said it's essential that uni-
versities continue to make the court
aware of their unique context in soci-
ety. This context is one that ought to
foster openness through protection,
for example, of students' and faculty's
rights to free speech.
When a case seems to have bearing
on higher education, universities may
file amicus briefs, or friend-of-the-
court briefs, where they take a side and
explain how they will be affected by a
certain decision.
See COURT, Page 12B

President Eisenhower, was chief jus-
tice. He was supposed to be conserva-
tive.
In a 1974 New York Times article,
President Eisenhower said, "Warren
was the biggest damned-fool mistake
I ever made."
It suffices to say that Warren turned
out to be pretty liberal. During his 16
years on the bench, the nation saw an
overall restoration of popular liber-
ties. Some call this era an important
revolution. Others, like Justice Anto-

Frankfurter wrote of the "four essen-
tial freedoms" of a university in Uni-
versity of Cahfornia Board ofRegents v.
Bakke: "to determine for itself on aca-
demic grounds who may teach, what
may be taught, how it shall be taught,
and who may be admitted to study."
And so the tradition continued. The
2003 Michigan cases did not overrule
Bakke - it is still good law. But it's any-
one's guess what the Supreme Court
will deliver next.
With President Bush's appointments

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