Virtually all legal challenges to affirmative action and preference policies are brought in federal court. When the college or university is a public institution, the claim is that it has denied the complaining party the “equal protection of the laws” guaranteed by Section 1 of the Fourteenth Amendment. Since the equal protection clause only applies to government, suits against private universities rely on Title VI of the Civil Rights Act of 1964, which bars discrimination “on the ground of race, color, or national origin . . . under any program . . . receiving Federal financial assistance.” Nearly all private universities receive federal assistance, and the Court has held that the analysis and rules are the same for both types of claims.
Each case starts in one of the federal District Courts in the state where the institution is located. Decisions by those courts are, in turn, reviewed by the Court of Appeals for the judicial circuit within which the district court is located if the losing party wishes to contest any aspect of what the district court holds. So, for example, the cases from the University of Michigan progressed from the United States District Court for the Eastern District of Michigan to the United States Court of Appeals for the Sixth Circuit (which covers Michigan, Ohio, Kentucky and Tennessee). In a similar vein, the current case involving Harvard College was initially heard in the District Court for the District of Massachusetts, then by the Court of Appeals for the First Circuit (which covers New England).
Decisions of these courts are binding only in their jurisdiction. While they have implications for similar cases in other parts of the country, they are “the law” only in the jurisdiction within which they are rendered.
These decisions may then be reviewed by the United States Supreme Court and, if taken and resolved by it, a final, national rule is fashioned. Review by the Supreme Court is discretionary. The Court accepts for review only about one percent of the cases in which a party seeks a review, though it has taken a much higher share of cases involving preference policies. The party seeking review files a request for what is styled as a writ of certiorari, an order from the Court indicating that it will take up the case. The Court hears cases during a “Term,” a period that begins in the First Monday in October and generally ends around the last week the following June. The two University of Michigan cases decided in 2003, for example, were heard during October Term 2002. Each case is assigned a “docket number,” beginning with the Term designation and then in numerical order by date of filing (e.g., Grutter v. Bollinger, Docket No. 02-241).
Cases are usually scheduled for one hour of oral argument, equally divided between the two parties. The Court typically hears two cases per argument day, Mondays through Wednesdays, in two week increments each month. Decisions are announced as the cases are decided, generally with a very small number (if any) in November or December. Most of the notable and controversial ones are generally issued from March through June. Each case will generate at least one “opinion” conveying the holding supported by a majority of the Justices. In many instances, individual Justices will file concurring opinions (agreeing with the result but offering a different perspective on its rationale) or dissenting opnions (disagreeing with the result and the reasoning of the Court). The decisive opinion, announcing the result in the case and any rules promulgated, may or may not be a clear majority opinion, depending on how the Court divides, with the possibility that a plurality opinion (that is, less than the number of Justices hearing and participating in the case) requires the agreement of one or more concurring justices to reach a majority.
Each federal court maintains a website where its opinions may be found. The Supreme Court initially issues what is called a Bench Opinion, followed shortly by a Slip Opinion. The opinions are then collected for formal publication in the official United States Reports, with the citation to the case being by volume, page number, and date (for example, Grutter v. Bollinger, 539 U.S. 306 (2003)). Various private publishers and websites also publish the opinions. The most often cited versions are published by Thompson Reuters in the West reporting system, initially on its website and eventually in bound volumes (Grutter, for example, being found at 123 S. Ct. 2325 (2003)).
District Court and Court of Appeals opinions are also made available via websites and in print. Once again, the West reporter system is the most frequently used source, with District Court opinions found in the Federal Supplement, now in its Third series (F. Supp. 3d) and those of the Courts of Appeals in the Federal Reporter, also in its Third series (F.3d). Once again, using Grutter as an example, the District Court opinion may be found at 137 F. Supp. 2d 821 (E.D. Mich. 2001), with the Court of Appeals opinion at 288 F.3d 732 (6th Cir. 2002).