Grutter's Denouement: Three Templates from the Roberts Court

Ellen D. Katz*

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This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin,[1] a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger[2] upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.[3] The Roberts Court now appears ready to ditch the practice much sooner.

This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.[4] Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.

Evolutionary Due Process

Louis J. Virelli III[*]

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I.  Introduction

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically.  Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause.  Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction.  This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: procedural due process.  By creating powerful disincentives for anti-evolutionist policymakers, procedural due process concerns could affect the future of evolution education even more profoundly than does the Establishment Clause.  This Essay explores the relationship between evolution education policy and procedural due process by first identifying and defining the adjudicative model.  It then considers the model’s constitutional ramifications for evolution instruction, concluding that this new approach to policymaking introduces procedural due process concerns that radically alter the legal and political calculus of the debate over evolution education.

Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Courtney Rachel Baron[*]

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I.  Introduction

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A.,[1] a case that addresses a deeply contested issue in special education litigation.  Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)[2] entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.[3]  Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue.  In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F.[4]  Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself,[5] resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove.[6]  Currently, the Second,[7] Ninth,[8] and Eleventh Circuits[9] recognize the availability of reimbursement, while in contrast, the First Circuit[10] has refused to do so.

Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools.[11]  The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA.  The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision.  More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.