Constitution Daily

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Constitution Check: Does banning affirmative action promote racial equality?

October 16, 2013 by Lyle Denniston


Lyle Denniston looks at the state of Michigan’s argument in the Schuette affirmative action case, and if the Supreme Court can be persuaded that banning affirmative action creates an equal opportunity for all races.

Affirmative_Action_supreme_court_demonstration_2003THE STATEMENT AT ISSUE:

“What we’re saying is, under [a 2003 Supreme Court decision], race preferences are barely permissible. It cannot be unconstitutional for the people to choose not to use them anymore, to accept this Court’s invitation…to move past the discussion about race and into a race-neutral future.”

 – A point made by Michigan’s state Solicitor General, John J. Bursch, during the Supreme Court’s hearing on Tuesday on the constitutionality of the state’s voter-approved “Proposal 2,” banning the use of race in admissions to public colleges and universities.


The Constitution, as interpreted by the Supreme Court as recently as last June, allows public colleges and universities to make some limited use of race in selecting their entering classes. The Court tightened the constitutional limits somewhat in that decision, but it did not accept the suggestion of some advocates that it go further and forbid race-based admissions policies altogether. What that left open, it is now clear, is whether a state’s voters can do what the Court itself declined to do as a constitutional matter.

The new case on Michigan’s Proposal 2, Schuette v. Coalition to Defend Affirmative Action, came up for a hearing in the court on Tuesday afternoon, and it was apparent that the measure has the support of at least four of the eight Justices who are taking part in the review (Justice Elena Kagan is not participating). Only if a fifth vote is available to support the measure will it survive, because a federal appeals court based in Cincinnati found it to be unconstitutional on the theory that it took away the option of minorities to seek admissions policies favorable to them.

Michigan has chosen a strategy for defending the ballot measure, depending very heavily upon the argument that the state’s voters were not discriminating against minorities, but rather were trying to create an equal opportunity for all races to bid for the slots in admission. The state’s lawyer opened his argument in the court this way: “The issue in this case is whether a Michigan constitutional provision requiring equal treatment violates equal protection….The answer is no.”

That is in part a rhetorical plea: Proposal 2 looks a good deal more benign if seen as a protector of equal access to higher education. But it also is a plea with definite legal meaning, because the Supreme Court has ruled twice before that voters in a state or in a city may not pass laws that put beyond the reach of minorities the kind of public policies that they favor, policies that give them opportunities to share in public benefits.

Michigan’s task, then, was to convince the Justices not only to accept its rhetorical characterization of the ballot measure now written into the state constitution, but also to put the case legally outside the control of those two prior rulings. The state’s lawyer, apparently sensing that there is not a majority on this court willing to overrule those two precedents (if for no other reason than they have continuing symbolic value as guarantees of racial equality), instead made a significant effort on Tuesday to convince the Justices that those cases were about “the evil of discriminatory intent”—that is, the prior rulings came out as they did, he said, because the voters who scuttled existing anti-discrimination policies acted as a direct result of racial bias.

By contrast, according to the state’s lawyer, Michigan’s voters probably had a variety of motives for voting in favor of Proposal 2, but, while there always “are some bad apples,” racial hostility did not carry the day in the ballot box. That comment was made after Justice Sonia Sotomayor said that one of the main sponsors of the measure had said that it “was intended to segregate again.”

As the hour of argument unfolded, the most significant development appeared to be that Justice Anthony M. Kennedy had come to the bench Tuesday with some concern that perhaps the Court might be bound by its prior rulings to strike down the measure (just as the Cincinnati court had done). He thus made repeated efforts, throughout the argument, to probe with all three of the lawyers appearing at the lectern whether the Michigan situation was different from that in the prior cases—one from Akron, Ohio, the other from Seattle, Washington.

Kennedy pursued one hypothetical after another in an obvious effort to determine whether Michigan voters had, in fact, put over Proposal 2 as a way to shut out minorities from opportunities they had previously had. If, on further study of the case, Kennedy were to determine that Michigan’s electorate was only pursuing equality, not a racial agenda, he could well provide the fifth vote that would save Proposal 2.

If a majority of the court does cast at least an initial vote to uphold the measure, the task that it would face in crafting a final decision would be to give states permission to ban affirmative action in higher education, without undercutting the choice of states that opt to retain some use of race in that setting.

There is no deadline for the court to rule. However, it is expected that the final decision will come by next spring.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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