Supreme Court Case Could Invalidate Affirmative Action in Michigan

Michigan amendment banning racial discrimination, preference under scrutiny

• October 15, 2013 9:30 am


The U.S. Supreme Court could invalidate the use of racial discrimination or preferences in public college and university admissions after it hears a case Tuesday.

The case, Schuette v. Coalition to Defend Affirmative Action, challenges an amendment to Michigan’s constitution banning discrimination or preferential treatment in public employment or education based on race, sex, ethnicity, or national origin. Voters approved the initiative by 58 percent to 42 percent in 2006.

The U.S. Sixth Circuit Court of Appeals struck down the amendment last year by an 8 to 7 vote, ruling that it erected an unconstitutional barrier for minorities who would seek to lobby for reinstating racial preferences. The circuit court said it violated the federal Constitution’s Equal Protection Clause (EPC).

However, supporters of the amendment said Monday at the National Press Club that the issue should also be viewed through the lens of states’ rights and equal treatment.

"There isn’t a lay person that can wrap their head around the idea that a state’s constitutional demand for equal treatment without regard to race somehow violates the U.S. Equal Protection Clause," said Jennifer Gratz, founder of the XIV Foundation, a group that supports ballot initiatives prohibiting racial discrimination and preferences.

Gratz was the plaintiff in one of a pair of affirmative action cases in 2003 that produced a muddled precedent from the Supreme Court.

The court ruled in Gratz v. Bollinger that the University of Michigan’s undergraduate admissions policy, which automatically awarded points to "underrepresented minorit[ies]," was not narrowly tailored enough and violated the EPC. Yet the court also ruled on the same day in Grutter v. Bollinger that the Michigan Law School’s "individualized inquir[ies]" into applicants, which considered race as a factor, did not solely base decisions on race and were narrowly tailored to achieve diversity.

Gratz noted that former Justice Sandra Day O’Connor, author of the Grutter opinion, said after the Michigan amendment passed that "it is entirely within the rights and privileges of Michigan voters to do so."

While the Court might opt to issue a narrow ruling in the Schuette case on whether states are allowed to proscribe race-conscious policies, Gratz said she hopes the justices reexamine the constitutionality of race-based affirmative action policies themselves. O’Connor wrote in the Grutter opinion that "the court expects that 25 years from now, the use of racial preferences will no longer be necessary."

"At some point this will be unconstitutional," Gratz said. "I don’t how our Constitution changes in 25 years."

Critics of the Michigan amendment say it is a thinly veiled measure to undermine racial diversity at colleges and universities, noting that black enrollment at the University of Michigan have fallen since its approval in 2006.

However, Michigan Attorney General Bill Schuette said upholding the amendment would encourage state colleges and universities to focus more on admitting low-income students of all races to achieve socioeconomic diversity.

"For too many years, we’ve swept that under the rug," he said.

Gratz pointed to a 2000 study’s findings that 86 percent of black students at selective colleges came from middle or upper class families. She contrasted colleges in that study with California colleges that sent mentors to the state’s 50 most underperforming high schools after voters passed an initiative similar to the Michigan amendment in 1996.

California universities like UCLA and the University of California at Berkeley now have some of the highest percentages of low-income students who qualify for federal Pell grants.

Although the court sent another affirmative action case, Fisher v. University of Texas, back to the lower courts in June, the justices suggested in their opinion that universities should seek other means to achieve diversity besides race-conscious admissions policies.

"Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice," the opinion said.

Chief Justice John Roberts also said in 2009 that, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Gratz said "diversity is always better when it happens naturally." She said she noticed a proliferation of groups for every race and ethnic group during a recent visit to Berkeley’s campus despite their integration efforts.

"You have these policies that claim to bring us together, but then you have all these different groups and clubs," she said.

"The easiest way to stop all this is like Chief Justice Roberts said: ‘Stop discriminating.’"

The Supreme Court is expected to rule on the case by next spring.