Michigan residents voted to ban affirmative action in 2006 ballot initiative, but a case before the U.S. Supreme Court may reverse that decision and set a new precedent for the way Michigan’s higher-education institutions consider race in application processes.
On Tuesday, the justices will hear oral arguments on Schuette v. Coalition to Defend Affirmative Action, a case that will approach the question of whether or not the state of Michigan violated the U.S. Constitution and federal statutory law by changing the state’s constitution to prohibit all sex- and race-based discrimination or preferential treatment.
The case is part of a series of responses that occurred after the Supreme Court’s 2003 decision on affirmative action involving admissions to the University’s Law School in Grutter v. Bollinger, which bears the name of former University President Lee Bollinger, now president of Columbia University. In a 5-4 decision, the court held that the Law School’s more holistic admissions program, which included race as a possible factor in admissions decisions, was constitutional. However, in Gratz v. Bollinger, the court held that the University’s undergraduate admissions program’s assigning substantial points to certain students based on race was unconstitutional since the undergraduate admissions process was more formulaic.
After the ruling, the University and many other institutions adopted programs that were closer to the Law School’s holistic approach and did not assign point values based on the different qualities the applicant possessed, particularly those related to race.
However, the two Supreme Court rulings based on University admissions policies did not quell controversy surrounding affirmative action, and in 2006, 58 percent of Michigan voters approved Proposal 2. The referendum amended the Michigan constitution to prohibit racially based preferences in admissions for public universities.
University President Mary Sue Coleman has continued to be a vocal proponent of the use of affirmative action in higher-education policies, and the day after the passage of Proposal 2, she gave a dramatic speech on the Diag promising to maintain diversity at the University.
“Make no mistake: We will find the route that continues our commitment to a richly diverse student body,” Coleman said in 2006.
When commenting on Fisher v. University of Texas last year, Coleman rejected the argument that affirmative action was no longer necessary and said she couldn’t foresee a day when such programs were no longer necessary.
Immediately after the vote, a number of pro-affirmative-action groups filed suit against the state and its public higher education institutions in order to nullify the law, claiming it violated the U.S. Constitution. In addition, another suit was filed by a group of University students and professors with similar allegations as the first challenge to the law. State Attorney General Bill Schuette, a Republican, joined the cases as a defendant.
In 2011, Judge David Lawson of the federal district court for the Eastern District of Michigan granted Schuette’s motion for summary judgment, which had the effect of upholding Michigan’s constitutional amendment and banning affirmative action. The coalition and university plaintiffs appealed to the Sixth Circuit Court, which struck down the amendment, agreeing that it violated the Constitution and federal statutory law. The sixth circuit then reviewed the case again with the full number of judges serving on the court and agreed with the earlier decision striking down Michigan’s constitutional amendment.
Last year, the U.S. Supreme Court agreed to hear arguments on the case. The court issued a notice Thursday that the oral arguments would take place Tuesday regardless of the government shutdown, which has paralyzed most of Washington D.C.
Law Prof. Richard Friedman, an expert on U.S. Supreme Court history, said the plaintiffs will likely make the argument that this amendment is a type of political restructuring that disadvantages minority citizens.
Friedman said the arguments will likely mirror the string of Supreme Court cases that dealt with violations of the 14th Amendment. Freedman cited the 1969 Supreme Court case Hunter v. Erickson in which the City of Akron, Ohio could not amend their city charter to allow housing ordinances with racial, religious or ancestral discrimination.
Friedman added that the plaintiffs will argue that the case is similar to a Seattle case from 1982, Washington v. Seattle School District No. 1, in which the state attempted to amend its constitution banning busing for purposes of racial desegregation but allowed children to be bused from district to district for other purposes. Justice Harry Blackmun held in the majority opinion that it was a type of restructuring and violated the equal protection granted in the 14th Amendment.
“That is the best case that the plaintiffs have” said Friedman, He indicated the similarities that both Schutte and the Seattle case involved a state-wide decision impacting something that might be done in favor of minorities. Both states attempted to amend their constitutions to say, “No, we aren’t going to do it,” Freedman explained.
However, Friedman said today’s bench will probably be less inclined to follow previous courts’ decisions. He noted that the court’s decision on the Seattle case functioned as a larger statement on discrimination, something he said today’s court is unlikely to do.
“It is a very different atmosphere today from 1969 and 1982,” Friedman said. “So, you look at busing back then. Some courts were ordering busing in some circumstances— it was nevertheless a remedy that was being used to counter segregation. So when people voted against it, it had a strong racially tinged feeling. It was going a little bit against the judicial tide.”
Friedman said based on evidence of the current court’s history with affirmative action — the law school case only won by a 5-4 vote, and in the case earlier this year, Fisher v. University of Texas, the Court tightened up where affirmative action was going to be allowed — he suspects the court will hold that Michigan voters can ban affirmative action without violating the federal constitution.
“It is very hard here for a state to get past the Supreme Court saying we want to do affirmative action” Friedman said, “ so when a state says we don’t want the university to do affirmative action, I think the court is much more likely to be receptive to that.”
“Here, affirmative action itself is hanging by a thread. When people say no I don’t want it, I think some of the justices are going to say of course the people can say that.”