Hastings Constitutional Law Quarterly


Wendy Parker


In this article, Professor Parker examines Justice Scalia's prediction that the "split double header" of Gratz and Grutter - which seemingly contradict one another - will result in a dramatically increased amount of litigation and become a never-ending aggravation for both students and educators because of uncertainty in distinguishing between constitutional racial activity and unconstitutional kind racial activity. Justice Scalia further predicts that post-Gratz/Grutter litigation will draw all racial groups - the majority group, underrepresented minority groups, and overrepresented minority groups - as plaintiffs, and he proposes an all-or-nothing approach: Outlaw all racial preferences in the public education setting or uphold one such activity as a general matter. Professor Parker takes as a given the value of legal certainty and challenges the positivist aspect of Justice Scalia's claim that Gratz and Grutter will produce legal uncertainty, and posits that, in fact, Justice Scalia wrongly characterizes Gratz and Grutter as producing mountains of litigation to mark the line between permissible and impermissible racial conscious activity. Thus, what we'll likely see in the aftermath of Gratz and Grutter is limited litigation to define more precisely how and when schools can consider race, and an answer from the courts that defers to educators. But after this, litigation will have only limited impact on education today. Litigators will quickly learn - just as many of their school desegregation counterparts have - that litigation is not the way to effectuate social change in America, and the filing of litigation will end. In the end, Gratz and Grutter will shift the site of the affirmative action debate to the local and state government level, contrary to Justice Scalia's prediction.