March 27, 2013

Supreme Court Takes Up Second Affirmative Action Case

The U.S. Supreme Court has agreed to consider whether a 2006 Michigan referendum to ban public colleges from using race or ethnicity in admissions is constitutional. This is the second affirmative-action case on the court’s docket —the first being Fisher v. University of Texas at Austin (discussed in a previous blog). If the Supreme Court declares the ban, known as Proposition 2, unconstitutional, similar bans in Washington and five other states could also be invalidated.

Inside Higher Ed nicely summed up the difference between the two affirmative action cases: “The Texas case is about the extent to which public colleges and universities may consider race and ethnicity in admissions, while the Michigan case is about the extent to which voters can bar such consideration.”

The Supreme Court accepted the Michigan case, Schuette v. Coalition to Defend Affirmative Action, after the state’s attorney general, Bill Schuette, appealed a November ruling by the U.S. Court of Appeals for the Sixth Circuit. The appeals court struck down Proposition 2 in an 8-7 vote, on the grounds that it “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Under Proposition 2, minority citizens who want public university admissions to consider race must launch a burdensome ballot campaign, whereas groups seeking other university policy changes are free to simply lobby.

Schuette argues that Michigan’s measure and the Equal Protection Clause both protect a fair political process, whereas “preferential treatment based on race (which necessarily means discrimination against other races)… focuses entirely on achieving a particular outcome (here, an admissions outcome), even at the expense of making the process discriminatory.” Michigan’s measure, he says, “does not endorse race-based policies; just the opposite, it stops discrimination based on race.”

The Supreme Court will hear the Michigan case in its term starting in October.  Its ruling in the Texas case is expected this spring or summer, but could occur at any time.