This fall, the U.S. Supreme Court will hear a new case regarding affirmative action in Michigan, Schuette v. Coalition to Defend Affirmative Action. The case, to which the University is a party, has the potential to have sweeping effects for both the standing of popular referendum and affirmative action policies across the nation.


Click here to see Professor Cohen’s amicus curiae brief.

The Michigan Civil Rights Initiative, a state constitutional amendment that outlawed the use of race, gender, and a number of other factors in college admissions, was adopted with 58 percent of voters for the measure. However, the Michigan Civil Rights Commission, then chaired by now-regent Mark Bernstein (D-Ann Arbor), alleged a campaign of disinformation and deception by proponents of the MCRI. In August 2006, a District Court judge ruled that supporters of the MCRI had “engaged in systematic voter fraud by telling voters that were signing a petition supporting affirmative action,” but refused to remove it from the ballot since the MCRI’s supporters had not technically violated the Voting Rights Act of 1965.

After the passage of the initiative, a group of University students and faculty filed a suit against the state of Michigan defending the right of higher education institutions to use affirmative action policies in their admissions procedures. The case, Cantrell v. Granholm was later combined with Coalition to Defend Affirmative Action v. Granholm by the U.S. District Court of Eastern Michigan. The District Court ruled summarily in both cases in favor of the state. The CDAA successfully appealed to the U.S. Sixth Circuit Court, which reversed the District Court’s ruling. In November 2012, a 15-judge panel ruled 8 to 7 to uphold the reversal of the District Court’s ruling. However, it stayed its own ruling from taking effect pending the Supreme Court’s review, which it granted on March 25.

The nation’s highest court will hear the case in its autumn session of this year.

The coalition argued that MCRI is a violation of the 14th Amendment to the U.S. Constitution since it allegedly prevents minority students from fully exploring and using their experiences with race in the college admissions process. Their argument also relies on precedent set in Grutter v. Bollinger and Gratz v. Bollinger, historic cases in which the University was the party — and bearing the name of former University President Lee Bollinger — which defined the legality and parameters of affirmative action programs across the nation.

In their initial filing with the Supreme Court, Michigan Attorney General Bill Schuette and the associated petitioners rebuffed both the reasoning of the coalition and the Sixth Circuit Court, writing, “It is exceedingly odd to say that a statute which bars a state from “discriminat(ing) … on the basis of race” violates the Equal Protection Clause because it discriminates on the basis of race and sex. Yet that is precisely what the en banc majority held here.”

While the future of affirmative action hinges on the outcome of the case, the court is expected to be equally interested in determining what power courts can have in overturning popular referendum. While the Sixth Circuit Court, sitting en banc, upheld overturning the MCRI, the Ninth Circuit Court did not support a challenge to California’s Proposition 209 in 1997 — another ban on affirmative action.

Reconciling these two conflicting circuit court precedents will be one of the chief tasks of the Supreme Court as the eight justices consider the case. Justice Elena Kagan, an appointee of President Barack Obama, recused herself from the case due to perceived conflicts of interest from her time as Solicitor General.

As the case’s hearing draws closer, the University and other parties are considering preparing briefs for submission to the court. After the passage of the MCRI, University President Mary Sue Coleman publicly promised to challenge the initiative in court in a dramatic speech on the Diag. In a December interview with The Michigan Daily, when asked whether she would have any concerns about reinstating a policy the majority of voters opposed, Coleman said she would not commit herself to any course of action before the court ruled.

“There’s a pretty robust argument going on in the legal community about constitutional amendments and what this means,” Coleman said. “I wouldn’t want to opine on that yet until we’re faced with it.”

As Coleman is stepping down from her role as president next year, the decision of whether or not to reinstate affirmative action programs will likely fall to her successor, pending the court’s ruling.

Because the University is listed as a respondent in the case, University spokesman Rick Fitzgerald could only offer limited comment on the administration’s legal strategy in approaching the case. He emphasized that though the University continues to support affirmative action, it cannot take any action as long as the MCRI remains in effect.

Michigan State University, also a party in the case, is currently preparing its brief for submission to the Supreme Court. MSU spokesman Jason Cody said the school would likely be filing its brief some time in August but was unable to comment further since it is still being written.

Though the University has not made a move to file a brief, Philosophy Prof. Carl Cohen, one of the University’s most senior tenured faculty and an outspoken critic of affirmative action policies, has filed a joint amicus curiae brief with other opponents from across the country.

While the brief draws heavily on reasoning from the Texas Association of Scholars in its opposition to affirmative action policies, Cohen said he focused his portion of the brief more on the constitutionality of popular referendum — which he sees as the most important issue of the case.

“I was amazed at the decision of the Circuit Court,” he said. “The people of the state of Michigan have the right to determine policy of the state of Michigan within the frame of the United States Constitution. The Sixth Circuit Court of Appeals denied them that right and decided on their own view of the matter that this was not appropriate decision making for the people of the state.”

Citing James Madison’s Federalist Papers, Cohen also said the Sixth Circuit Court had exercised its “will” rather than its “judgment,” and that popular referendum must be answerable only to the strictures of the Constitution itself in judicial review.

Since the central question is the power and legal standing of a popularly adopted referendum, Cohen said he could see some of the court’s liberal justices supporting overturning the Sixth Circuit Court’s decision in the interests of popular sovereignty.

“I don’t think people fully understand what’s at issue here,” Cohen said. “People think ‘are they for affirmative action or are they against it?’ But that’s not the issue here — the issue is the right of the people to make a decision against certain policies whether you like that policy or don’t like that policy.”

He added that he saw it as likely that the court will, in the end, reverse the Sixth Circuit Court’s ruling.

“An honest member of the intellectual or civil community will say, ‘Look, whatever I may think about affirmative action, I think it’s reasonable for the people to decide whether they want it or don’t want it.’ ”

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