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  • Supreme Court Hears Second Affirmative Action Case This Year

    On October 15, only four months after the United States Supreme Court heard arguments regarding an affirmative action program for the University of Texas[1], the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action[2], a case challenging a Michigan ban on affirmative action policies.

    The action arose in 2006 when Michigan voters approved a proposal (“Proposal 2”) that would amend the state constitution and prohibit “all sex– and race-based preferences in public education, public employment, and public contracting.”  In other words, the amendment prohibited any race conscious affirmative admissions policies in public education, government contracts, and public employment.

    One day after the proposal was passed, several interest groups joined together to form the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (the “Coalition”). The Coalition then brought this action.

    The U.S. District Court for the Eastern District of Michigan granted[3] defendant’s summary judgment motion that Proposal 2 was constitutional.  In 2012, reversing in part[4], the Sixth Circuit held that the amended proposal violated Michigan’s State Constitution and Equal Protection Clause of the United States Constitution.

    The question posed before the Supreme Court is: “Does an amendment to a state’s constitution to prohibit race- and sex-based discrimination and preferential treatment in public university admission decisions violate the Equal Protection Clause of the Fourteenth Amendment?” In answering this question, the Supreme Court will decide whether Proposal 2 is constitutionally invalid.

    Relying on the 2003 affirmative action case, Grutter v. Bollinger, the Coalition argued that because the Supreme Court has already held that the inclusion of race as one of the factors in a law school admission process to promote educational diversity was constitutionally permissible[5], it is evident that “race is not all the way off the table” in devising state admission policies. On the opposite side of the argument, Petitioner’s counsel argued that the Supreme Court’s language in Crawford v. Washington[6], demonstrates that “the whole point of equal protection is to take race off the table when everyone is being treated the same.”

    Seemingly supporting the Respondent’s argument, Justice Scalia stated that the Michigan state law is “not a racial classification . . . . It’s the prohibition of racial classifications.” As explained and buttressing the Petitoner’s position, Justice Ruth Bader Ginsburg stated that Supreme Court precedent stands for the proposition that “. . . we can’t put hurdles in the way of a disadvantaged minority.”

    Chief Justice John G. Roberts Jr., inquired as to whether any minority students suffered an actual disadvantage by being placed into this setting. In posing this question, the Chief Justice relied on a “mismatch” theory explored by Richard Sander and Stuart Taylor Jr.[7], offered in support of Proposal 2.  As a result of this brief, the Chief Justice inquired to the Coalition’s Counsel, “Do we have to assume in your favor that these definitely are beneficial to particular minority groups?”

    It will be interesting to see how the Supreme Court finally weighs in on this issue. If the Supreme Court decides that the Michigan ban is unconstitutional, the decision could potentially lead to the invalidation of similar statutes in several other states such as California, Arizona, Florida, Oklahoma, Nebraska, New Hampshire and Washington.

    If you or your company would like more information regarding anti-discrimination or education law, call James G. Ryan at (516) 357-3750 or email him at jryan@cullenanddykman.com.

    A special thanks to Melissa Cefalu, a law clerk at Cullen and Dykman LLP, for her assistance with this post.