Supreme Court Hears Arguments on Mich. Affirmative Action
The U.S. Supreme Court heard arguments today on whether a state can preemptively ban any consideration of race in higher education admissions policies.
In Schuette v. Coalition to Defend Affirmative Action, the court will decide whether a 2006 ballot initiative which altered the Michigan constitution to preclude affirmative action in public university admissions will be allowed to stand.
“The use of race-based and sex-based preferences in college education is certainly one of the most hotly contested issues of our time,” Michigan Solicitor General, John J. Bursch said to the court. “And some believe that those preferences are necessary for campus diversity. Others think that they are not necessary, and in fact that we would have a much better world if we moved past the discussion about race and instead based it on race-neutral criteria.”
Michigan was previously in the affirmative action spotlight in the 2003 case Grutter v. Bollinger, in which the court ruled that public universities could use race as a factor in making admissions decisions as long as there wasn’t a specific racial quota and it wasn’t the only factor under consideration. Earlier this year, the justices backtracked a bit, ruling in Fisher v. Texas that race could still be considered but raising the bar that schools would have to meet to justify it if they were challenged.
The people of Michigan acted to distance themselves from race-based admissions with the 2006 constitutional amendment. However, the Coalition to Defend Affirmative Action, among other groups, challenged the amendment, and the 6th U.S. Circuit Court of Appeals ruled that it was a violation of residents’ equal protection rights. Their reasoning was that someone who wanted to challenge the admissions policy based on race could now only do so through another ballot initiative, whereas someone who wanted to challenge other admissions policies like legacy preferences that hadn’t been affected by the state constitution has a variety of avenues to make a case.
Exorbitant Cover Charge
During the arguments, Bursch noted that the University of Michigan could try other methods to increase diversity without explicitly using race, such as eliminating legacy preferences for the children of alumni or seeking to increase its socioeconomic diversity.
“So the University of Michigan could be trying harder,” Bursch said. “But our point isn’t to get into a debate about whether preferences are a good or bad thing, because that’s not what this case is about. The question is whether the people of Michigan have the choice through the democratic process to accept this Court’s invitation in Grutter to try race-neutral means.”
ACLU Attorney Mark D. Rosenbaum argued for the Coalition, making an analogy about the difficulty of pursuing policy that addresses race if the amendment stands. “You may do so, but first you have to pay an exorbitant cover charge and then you have to mount multiple stairs, flights of stairs, just to begin the process of enacting constitutionally permissible legislation,” Rosenbaum said. “The people of the State have multiple options available to them if they don’t like the way the universities are operating. But the one option they don’t have is to treat racial matters different from all other matters.”
Similar to many high-profile issues, the justices in the Schuette case appear to be split along ideological lines, with the deciding vote belonging to Justice Anthony Kennedy. If he were to join the court’s three liberal members who heard the case in upholding the 6th Circuit’s decision, the ban will be thrown out. If he instead joins his four conservative colleagues, the amendment will stay in place.
Kennedy’s questions focused on how far the Coalition’s political process argument could be extended and how similar this particular case is to two previous Supreme Court cases that resulted in the rejection of state ballot initiatives that repealed antidiscrimination laws.
Justice Elena Kagan has recused herself due to prior involvement in the case.