April 9, 2013

SUPREME COURT AGREES TO HEAR KEY AFFIRMATIVE ACTION CASE

The case is Schuette v. Coalition to Defend Affirmative Action, which the Supreme Court granted certiorari on March 25, 2013 [2013 U.S. LEXIS 2504]. The case involves an amendment to the Michigan State Constitution that would prohibit all sex and race-based preferences in public education. The amendment reads as follows:

  1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
  2. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
  3. For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.

The amendment was deemed constitutional by the District Court of the Eastern District of Michigan, but was overturned and deemed constitutional by an en banc panel of the 6th Circuit in an 8-7 vote. The key issue in this case was whether there is a violation of the Equal Protection Clause of the 14th Amendment by restricting university officials from considering race as a factor in university admissions. Or in the words of Judge Cole, speaking for the majority:

In addressing the Plaintiffs’ arguments, we are neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such. This case does not present us with a second bite at Gratz and Grutter—despite the best efforts of the dissenters to take one anyway. This case instead presents us with a challenge to the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies. In other words, the sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions—something they are specifically allowed to do under Grutter.

In other words, the argument is that the amendment would run counter to what to what the Supreme Court allowed in Grutter. On the other hand, Judge Gibbons, one of the dissenters, provided a different view of Grutter, giving three reasons why the amendment is constitutional. Accordingly:

First, Grutter reminded us that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race” and that, as a consequence, “race-conscious admissions policies must be limited in time.” …..This principle makes sense because all “racial classifications are presumptively invalid.”

Second, Grutter indicated that the decision to end race-conscious admissions policies is primarily one to be made by states and their public universities, not courts. See Grutter, 539 U.S at 342 (noting that “sunset provisions . . . and periodic reviews” could be used to determine the continuing necessity of racial preferences and noting with favor race-neutral alternatives already employed in several states).

And third, while racially conscious admissions policies are permitted, they are not constitutionally required. Id. at 325 (“[S]tudent body diversity is a compelling state interest that can justify the use of race in university admissions.”) (emphasis added); see Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 249 (6th Cir. 2006) (“Grutter never said, or even hinted, that [*495] state universities must do what they narrowly may do.”).

Interestingly, the Supreme Court has indicated it will hear the arguments in this case before it delivers its ruling in Fisher v. University of Texas, a case we advertised as “another test of Grutter v. Bollinger (2003) in an Alert dated March 12, 2012.

by Art Gutman Ph.D., Professor, Florida Institute of Technology

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