On Tuesday the Supreme Court heard oral arguments in Schuette v. Coalition to Defend Affirmative Action, a case about, you guessed it, affirmative action. With Fisher v. Texas being decided over the summer, it seems like the Supreme Court has been hearing a lot of affirmative action cases lately. This one, however, is fairly different from the last few big news affirmative action cases.
In 2006, the people of Michigan passed a state constitutional amendment prohibiting affirmative action practices in admission to public universities. This amendment passed relatively soon after the 2003 decision, Grutter v. Bollinger, in which the Supreme Court ruled that the University of Michigan Law School was permitted to use affirmative action practices in its admissions decisions because the way it used race as a factor did not amount to a quota system, which had been prohibited in 1978 in Regents v. Bakke. Even though certain race based admissions practices were allowed, this state constitutional amendment prohibited any use of affirmative action practices in public university admissions offices.
Soon after the state constitutional amendment passed, a coalition of groups, including the ACLU, challenged the amendment in court, claiming that it violates the federal equal protection clause, found in the 14th Amendment. In previous affirmative action cases, generally a white prospective student would challenge the admissions policy, claiming that it amounted to racial preference in favor of minority applicants and therefore violated the white prospective’s constitutional rights to equal protection, as in Fisher v. Texas. This case is very different, in that groups are challenging a ban on affirmative action. In previous cases, the issue was whether and to what degree colleges could use affirmative action practices. In this case, the issue is whether they can be completely prohibited from doing so.
Ilya Shapiro, of the Cato Institute, a conservative think tank, points out that it is surprising that the Supreme Court chose to review the Schuette case while Fisher v. Texas was still pending. Fisher has since been resolved, but Shapiro does not see much hope for the plaintiffs in the Schuette case. Because race based admissions policies are unnecessary, Shapiro argues, it would be inappropriate for the Supreme Court to undermine the Michigan political process in determining that the state no longer wished to make use of such policies.
During the oral arguments on Tuesday, Mark Rosenbaum, ACLU lawyer and representative of the plaintiffs, argued that the Court could not rule in favor of the amendment’s constitutionality without overruling the busing case, which invalidated a Washington state initiative in the 1970s to desegregate their schools through a system of busing. In that case, the Court ruled that the plan placed an unconstitutional burden on racial minorities within the government process.
Odds are that the Supreme Court will not overrule the busing case. However, it seems likely that the Court will look for a third option – a way to explain that the current case is just different enough from the busing case that they can have seemingly conflicting rulings. Justice Kagan has recused herself from this case, probably because she worked on an earlier stage of it during her time as Solicitor General. This leaves five conservative justices and three liberal justices on the bench to decide whether Michigan can prohibit any use of affirmative action in public university admissions processes. The ideological center and most left leaning of the conservative justices on the Court, Anthony Kennedy, was unusually active during oral arguments and did not seem to be receptive to the plaintiffs’ arguments. It is not looking good for race conscious college admissions in Michigan.