Constitution Daily

Smart conversation from the National Constitution Center

The next big affirmative-action case

November 20, 2012 by Lyle Denniston


Once the Supreme Court decides a major case on the constitutionality of using race as a factor in choosing the entering class at public colleges and universities, it will find waiting for it another case. Potentially, this new case may be of even greater importance: it will test whether a state’s voters can simply abolish affirmative-action policies altogether.


The justices have been studying for the past five weeks their first college affirmative-action program in nine years, in a case from the University of Texas at Austin. The court held a hearing on that case, titled Fisher v. University of Texas, on October 10.  Although the case is still under study, there may well be a majority in favor of imposing some new limitations on race-based public programs, but it is doubtful that the justices will go so far as to ban them.


Even if the Texas program, in particular, is struck down, there probably are not five votes on the court to overrule decisions going back to 1978 in the case of California Regents v. Bakke allowing for some use of race—so long as it is not the sole factor—in college admissions policies.


If the Constitution itself were not used to prohibit such policies, the question arises whether a state could do so politically—that is, by a vote of its citizens. California’s voters did just that, in passing “Proposition 209” in 1996. That was upheld in lower courts, but the Supreme Court in 1997 refused to hear an appeal challenging the measure.


There has been a new round of rulings in federal courts on “Proposition 209,” but it was upheld again, and the time to take that case on to the Supreme Court has expired, so the justices will not be drawn into that particular dispute.


However, there is another case on the horizon, and it appears that state officials in Michigan are preparing to appeal to the Supreme Court to defend a ban that is similar to California’s. In November 2006, Michigan voters by a margin of 58 percent to 42 percent approved “Proposition 2” as an amendment to their state constitution. It bans any use of race in public college admissions, in state employment, and in state contracting.


In a decision last week by the Sixth Circuit Court of Appeals, based in Cincinnati, “Proposition 2” was struck down, so far as it applied to college admissions. But that court did so by the split vote of 8 to 7, and the dissenters made fervent arguments for allowing a state to forbid affirmative-action plans in education and other state activities.


There are a number of reasons why state officials can be optimistic that the Supreme Court will hear the case, instead of bypassing it as it did with California’s ban. First, there is a direct conflict between federal appeals courts’ decisions on the issue, and that usually attracts the Supreme Court’s attention. While the justices do not grant many cases, comparatively, they are much more likely to do so when lower courts are split on a major issue.


Second, the fact that the vote was so close in the Sixth Circuit Court, and that there were seven dissenters, is a good indication that judges can definitely disagree about the issue of banning race-based public policies, including college admissions, and that resolution by the Supreme Court is necessary.


And third, the Michigan case is a logical sequel to whatever the court does in the University of Texas case, and the same justices who voted to hear that case would be highly likely to vote to grant the state’s appeal on “Proposition 2.”


The eight-judge majority in the Sixth Circuit Court did not strike down “Proposition 2” on a theory that it was a discriminatory measure by itself. Nor did it do so on a theory that the Constitution requires that there be affirmative action in public education.


Rather, the rationale of the decision was that “Proposition 2” was a proposal that had a “racial focus,” because it was targeting programs that would be mainly of benefit to racial minorities. The measure set up a political regime, the majority concluded, in which minorities favoring such programs would have to go to unusual lengths—that is, they would have to get the state constitution amended—in order to clear the way for colleges and universities to use affirmative action in admissions. It is unconstitutional, the majority concluded, for a state to put so far beyond the political reach a program of interest to its minority citizens.


In dissent, the seven judges in varying ways argued that America has a tradition of hostility to race as a deciding factor, and that it surely is within the power of a state’s citizens to use their direct legislative authority to mandate a state policy of equality.


It appears that time is too short, in the court’s current term, to get the Michigan case before the justices for a prompt ruling. That means it is more likely to be granted and then decided in the new term that starts next October.


Lyle Denniston is the National Constitution Center’s Adviser on   Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.


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