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With similar case pending, High Court grants cert to Sixth Circuit ruling that Michigan’s voter-approved affirmative action ban unconstitutional as to university admissions policies

April 10th, 2013  |  Cynthia L. Hackerott

The U.S. Supreme Court has granted cert to review an en banc Sixth Circuit decision that a voter-approved ban on government affirmative action in the state of Michigan, as it applies to race-conscious admissions policies in public colleges and universities, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Schuette v Coalition to Defend Affirmative Action, Dkt No 12-682, cert granted March 25, 2013).

On November 15, 2012, a deeply divided Sixth Circuit ruled, 8-7, that the measure violated equal protection under the political process theory because equal protection does not permit the kind of political restructuring that the measure affected (Coalition to Defend Affirmative Action v Regents of the University of Michigan, 96 EPD ¶44,674). The Sixth Circuit ruling was limited to the area of university admissions, but the constitutional analysis could be applicable to race-conscious decisions in state employment and the awarding of government contracts.

Initiative prompted by 2003 Supreme Court ruling. In November 2006, Michigan voters approved a ballot initiative, Proposal 2, to amend the state’s constitution to prohibit state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin. The initiative impacts the state’s use of affirmative action in a number of areas, including employment, education and government contracting. The Michigan measure was largely prompted by a June 2003 decision in which the U.S. Supreme Court, in a 5-4 vote, upheld the University of Michigan’s consideration of race in its law school admissions policy (Grutter v Bollinger, 84 EPD ¶41,415). However, on that same day in a 6-3 decision, the Court held that the university’s use of race as a factor in its undergraduate admissions policy violated the U.S. Constitution (Gratz v Bollinger, 84 EPD ¶41,416 ). In the Grutter and Gratz cases, white students who claimed they were qualified but denied admission challenged the university’s law school and undergraduate admissions systems on equal protection grounds. The Court found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but that the undergraduate policy was not.

Similar ballot measures in other states. The Michigan initiative is similar to measures passed by voters in California (1996), Washington state (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012). Colorado, in contrast, became the first state to reject an anti-affirmative action ballot measure in the November 2008 election.

Similar pending Supreme Court case. The issue of affirmative action is also currently pending before the High Court in another case. On October 10, 2012, the Court heard arguments in Fischer v University of Texas at Austin (Dkt No 11-345). The issue presented in Fischer is whether the High Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. In 1997, the Texas legislature enacted the Top Ten Percent Law which is designed to increase diversity without taking race into account. The law, which is still in effect, mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In 2003 after the Supreme Court issued its Grutter ruling, Texas added the consideration of race among many factors to fill remaining slots at public universities. Two white Texas residents sued the university after being denied spots in 2008.

It appears that the Schuette decision — which could impact the future of similar anti-affirmative action measures in several states — will have broader implications than the Fischer case — which focuses only on the specific policy applied in Texas.