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Supreme Court hears Michigan challenge to Affirmative Action

GEORGE CURRYBy George E. Curry
NNPA

WASHINGTON — Four months after the Supreme Court declined to invalidate affirmative action in a case brought against the University of Texas, it heard oral arguments to determine if a Michigan referendum violates the Equal Protection Clause of the 14th Amendment by amending the state constitution to prohibit the consideration of race, sex, color ethnicity or national origin in public university admissions decisions.

The case, Schuette v. Coalition to Defend Affirmative Action, was argued before the court on Oct. 15. While the case is not exclusively about affirmative action, it will determine whether Michigan and other states with similar bans can outlaw affirmative action through statewide initiatives rather than judicial channels.

Michigan is becoming the battleground for affirmative action in the Supreme Court. In 2003, the court ruled on two cases involving the University of Michigan. In Grutter v. Bollinger, the court approved the University of Michigan Law School admissions program that considered race within “the individualized, holistic review of each applicant’s file.” However, in Grutter v. Bollinger, the court invalidated the undergraduate affirmative action program that assigned specific points for race.

Although the conservative John Roberts court has appeared to be eager to review cases that provide it an opportunity to severely restrict affirmative action in higher education, it was compelled to enter this fray because of two conflicting decisions by different federal appeals courts (6th and 9th), which rank second in power to only the Supreme Court.

If the court overturns the Michigan ban, it won’t be the first time it has invalidated a popular citizen initiative. In 1969 , the Supreme Court struck down a change in the city charter of Akron, Ohio that made it harder to implement housing policies that assisted people of color. In 1982, the court nullified a voter approved ban prohibiting the use of busing for desegregation.

At the other extreme, the court also upheld a California constitutional amendment in 1982 that prohibited state courts from ordering pupil reassignment and busing unless it was required under the Equal Protection Clause of the 14th Amendment.

Attorneys on both sides spent a considerable amount of time in their briefs and in oral arguments trying to show how the Seattle and Los Angeles rulings apply — or do not apply — to their respective positions.

The court’s ruling in this case will affect Michigan and five other states — California, Arizona, Nebraska, Oklahoma and Washington — that have similar bans. Justice Elena Kagan has recused herself from the case, presumably because of her work on the case in 2009 as U.S. Solicitor General. If the court deadlocks 4-4, the 6th Circuit Appeals Court ruling overturning the Michigan ban would become the governing law.

In 1996, California voters approved Proposition 209, a ballot initiative that amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity, in the areas of public employment, public contracting or public education. The U.S. Court of Appeals for the 9th Circuit let stand lower court’s rulings upholding the constitutionality of Prop 209.

Michigan’s Proposal 2, modeled after the California ban, was passed by Michigan voters in November 2006 by a vote of 58 percent to 42 percent. Although the ballot initiative outlaws all special consideration of race, sex, color, ethnicity or national origin in public employment, education and contracting, the issue before the Supreme Court pertains only to the application of race in the university admissions process.

According to Michigan Solicitor General John J. Bursch, who is representing Attorney General Bill Schuette in the proceedings, the issue before the court isn’t about race per se. Responding to Justice Sonia Sotomayor, Bursch said, “But our point isn’t to get into a debate about whether preferences are a good or a bad thing, because that’s not what this case is about. The question is whether the people of Michigan have the choice through the democratic process to accept this court’s invitation in Grutter to try race-neutral means.”

Sotomayor, the most aggressive defender of affirmative action during the oral arguments, said, “I thought that in Grutter, all the social scientists had pointed out to the fact that all of those efforts had failed. That’s one of the reasons why the … law school claim in Michigan was upheld.”

In their brief, the CDAA, Integration and Immigrant Rights; Fight for Equity By Any Means Necessary (BAMN) and Chase M. Cantrell, et al., argued that the 14th Amendment does not permit Michigan voters to selectively distort the decision-making process.

“As enacted, Proposal 2 manipulates the political process by imposing distinctively disadvantageous barriers upon proponents of permissible policies under the Fourteenth Amendment incorporating consideration of racial identity and background, but favors — indeed mandates — policies that bar taking race into account.

“Stated more specifically, Proposal 2 rigs the political process against race-based policies that favor diversity so as to systematically endorse race-based policies that disfavor racial diversity by discriminatorily recalibrating the rules of governmental decision-making.”

Supporters of affirmative action are hoping the Supreme Court will rely on its precedents, especially the one involving Seattle, as the basis for overturning the Michigan referendum.

A brief of opposition joined by the NAACP Legal Defense and Educational Fund, the ACLU Foundation and others stated, “Blacks and other citizens had won school board approval of a busing plan to lessen the de facto segregation in Seattle’s public schools. White citizens then waged a successful campaign to pass a statewide initiative prohibiting school boards from using busing to achieve racial integration, while permitting the use of busing for a number of other purposes.

The Court again held that a state could not selectively gerrymander the political process to impose more onerous political burdens on those seeking to promote racial integration than it imposed on those pursuing other policy agendas.”

George Curry is editor-in-chief of NNPA.

 

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