Occasionally lost in the hullabaloo over the controversial gay marriage and voting rights opinions the Supreme Court handed down at the end of June was the Court's decision in the affirmative action case Fisher v. University of Texas at Austin.
Although the case had provided the Court with an opportunity to review the constitutionality of the University of Texas's affirmative action plan, in an anticlimactic decision by Justice Anthony Kennedy, the Court failed to make any significant changes to its affirmative action jurisprudence, instead sending the case back to the lower courts for further review.
On Tuesday, October 15, however, the Court will once again take up the issue of affirmative action in the case Schuette v. Coalition to Defend Affirmative Action, which asks the Court to decide whether the state of Michigan violated the 14th Amendment's Equal Protection Clause when it amended its state constitution to ban affirmative action programs in its universities and in the public sector.
At issue in Schuette is the constitutionality of Proposal 2, a 2006 initiative to amend Michigan's Constitution that passed with 58 percent of the vote. Proposal 2, also known as the Michigan Civil Rights Initiative, prohibited the use of racial, ethnic, or sex-based preferential treatment in admissions considerations for public educational institutions, government contracting, and public employment, thereby effectively prohibiting affirmative action programs in any of Michigan's public institutions.
Voters in at least six other states have passed similar initiatives prohibiting affirmative action in their own states. Indeed, the Michigan initiative copies nearly verbatim California's Proposition 209, which the state's voters adopted in 1996 to eliminate preferential admissions and hiring practices in California.
The Schuette case offers the Court the opportunity to examine affirmative action in a very different way than it had in the Fisher case decided last term and in the Court's best-known affirmative action decisions—including its seminal 1978 decision in Regents of the University of California v. Bakke (which first approved the use of affirmative action to achieve diversity in higher education) and its 2003 case Grutter v. Bollinger (which upheld the University of Michigan Law School's affirmative action policies).
Last term, Justice Kennedy's decision in Fisher sent the case back to the Fifth Circuit Court of Appeals, which the Supreme Court held had not properly applied the strict scrutiny standard of review to the University of Texas's affirmative action program.
But whereas Bakke, Grutter, and Fisher all involved lawsuits filed by white applicants that had been denied admission challenging the constitutionality of racially-based affirmative action programs, Schuette will decide if Michigan violated the Equal Protection Clause of the 14th Amendment to the United States Constitution by banning racially and sex-based affirmative action in the context of higher education through an amendment to its state constitution.
The Coalition to Defend Affirmative Action, a group supportive of the continued use of affirmative action programs in Michigan, contends that Proposal 2 violates the Equal Protection Clause of the United States Constitution. The Coalition maintains that Proposal 2 marks a major setback for civil rights in the United States by discriminating against minorities and inhibiting them from achieving equality in society, particularly within the context of higher education.
Moreover, the Coalition argues that prohibiting the use of affirmative action prevents Michigan from achieving diversity in its educational institutions, a goal the Supreme Court has consistently held is a permissible state justification for affirmative action. Indeed, the Coalition points to the dwindling number of minority students in the state's public medical schools and law schools since the adoption of Proposal 2 to suggest the difficulty in achieving racial diversity in higher education without employing affirmative action measures.
However, Michigan's Attorney General, Bill Schuette, maintains that Proposition 2 does not run afoul of the Equal Protection Clause and that the voters within a state maintain the right to approve an initiative eliminating affirmative action within the state.
Schuette and other affirmative action opponents maintain that the 14th Amendment's Equal Protection Clause bars the government from giving preferential treatment to any individuals—whether white or a minority—on the basis of race.
Indeed, at a recent news conference, Schuette quoted Chief Justice John Roberts, who wrote in a recent opinion that the "best way to stop racial discrimination is to stop discriminating on the basis of race." Because Proposal 2 simply prohibits discrimination, Schuette argues that it is in harmony with the 14th Amendment and is well within the right of Michigan voters to enact.
In an 8-7 decision, the Sixth Circuit Court of Appeals sitting en banc held that Proposal 2 denies members of minority races equal protection of the laws. The Sixth Circuit held that the initiative amounted to an unconstitutional restructure of the political process, reasoning that because Proposal 2 amended the Michigan constitution to eliminate the state's racial preference programs, a separate constitutional amendment would be required to reinstate them, thereby amounting to an unfair burden on minorities.
The Sixth Circuit's opinion maintained that because the Supreme Court's jurisprudence continues to hold that racially-based affirmative action programs are constitutionally permissible, the voters' decision to ban affirmative action distorts the political process and places a burden on racial minorities that violates the Equal Protection Clause. The Sixth Circuit's ruling, however, runs counter to a 1997 ruling by the Ninth Circuit upholding the constitutionality of California's virtually identical initiative, Proposition 209, thereby creating a split among the lower courts for the Supreme Court to resolve.
In an interesting parallel to last term's Fisher case, Justice Elena Kagan is recused in Schuette, having worked on the case in her former role as Solicitor. Justice Kagan's recusal leaves open the possibility that the Court will divide 4-4 and thereby leave untouched the Sixth Circuit's ruling finding the Michigan ban unconstitutional.
Schuette gives the Supreme Court the opportunity to address the issue of affirmative action from the opposite perspective it usually does: from the vantage point of the majority of citizens voting by use of the initiative process to eliminate affirmative action programs within a particular state. While the Schuette case is unlikely to impact existing affirmative action practices in states without such laws directly, the Court's decision could end initiative movements to prohibit affirmative action within states—or alternately embolden a movement to eradicate affirmative action programs systematically across the United States
Alexander Fullman is a Marshall Scholar pursuing graduate studies in political science at the University of Oxford's Department of Politics and International Relations.
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