Can State Governments Ban Affirmative Action?

By Bonnie Lindemann

On November 15, 2012, the United States Court of Appeals for the Sixth Circuit struck down Michigan’s ban on affirmative action based on race in college admissions.  In an 8-7 decision, the Sixth Circuit ruled that the ban would effectively prevent racial minorities from participating equally in the political process.  As such, minorities were denied equal protection under the law.

The ban on affirmative action in Michigan’s public universities began with Jennifer Gratz, who was a plaintiff in one of the earliest affirmative action cases involving universities.  Gratz had been waitlisted for the University of Michigan, and alleged that less qualified students were admitted in her place because she was white.  The ban that she championed also included a ban on affirmative action based on race or gender in hiring for public jobs or contracting positions. Despite the wider shadow cast by the constitutional amendment, the Sixth Circuit only considered whether affirmative action in admissions decisions in public universities may be constitutionally banned.

The majority decided this way because other groups that wanted special consideration in college admissions would only have to convince the college boards to make a policy change.  The boards of publically funded universities in Michigan are elected.  As such, the court found the board was part of the political process.  As part of the political process, college boards could be lobbied to make policy changes to, among other things, college acceptance guidelines.

In order to make policy changes in acceptance practices, colleges must have the ability to implement those changes.  The constitutional amendment to Michigan’s constitution restricted the boards’ ability to make changes in acceptance practices by restricting them from implementing any policies that consider race.  The only way to change this policy would be to pass a new amendment to Michigan’s constitution.

In contrast, other groups would only have to convince the college boards to change policies. For example, children of alumni (“legacies”) who wanted preferential treatment during the admissions process would only have to lobby the college boards in order to effect change.  Unlike legacies, racial minorities would be barred from simply lobbying the college boards to ensure their interests were represented; they would have to overcome the far more arduous hurdle of passing a new amendment to the Michigan constitution.  Because this puts racial minorities at a disadvantage during the political process, according to the Sixth Circuit the ban on affirmative action in college universities violates equal protection.

Michigan has already indicated it will file for a writ of certiorari with the Supreme Court, as well as for a stay of the Sixth Circuit’s order, in order to prevent colleges from instituting new affirmative action policies while waiting for the Court to hear Michigan’s case.

This decision comes during the midst of the Supreme Court’s latest look at affirmative action.  The Supreme Court is considering a case in Texas dealing with affirmative action, and if the oral arguments are any indication, Texas will have some difficulty winning its case.  That case involves a program at the University of Texas, which considers race among other criteria when deciding which students to accept.

The problem with affirmative action in the current Court’s climate is that the Court is rather conservative leaning of late.  For instance, the conservative leaning members of the Court rigorously questioned the attorney for the University of Texas on how the university employed affirmative action to choose its incoming class.  Justice Alito questioned whether the university was properly applying the Court’s precedent in its policies.  The justice seemed concerned that the university was not simply looking for a diverse background of experience, as the university grouped all potential black students into the same category, regardless of their cultural heritage.  In addition, Justice Kennedy was worried that the university was not interested in focusing on underprivileged students, but looking instead to admit students of one race.

Justice Kennedy is frequently the deciding vote in the current polarized Court.  If Justice Kennedy is leaning toward ruling that affirmative action is unconstitutional, chances are high that the Court will vote to do so.  What will this mean for the Sixth Circuit’s decision?  If the Supreme Court has decided that affirmative action is unconstitutional, the precedent the Sixth Circuit set on Thursday will be overruled as well.

In addition to the Court’s climate toward affirmative action being somewhat icy at the moment, the Sixth Circuit’s focus on affirmative action in college admissions but not public hiring is potentially troubling.  While the Sixth Circuit did not say one way or the other whether the other facets of the ban would be problematic, ruling only that affirmative action must be an option for public universities but not for public hiring seems counterintuitive.  If inequality between the races is so pervasive in our society that public universities have to institute affirmative action, it stands to reason that public hiring will need similar measures to effectively combat the inequality in the work place.

The argument that affirmative action must be an option for college boards to institute because college boards are part of the political process is an interesting new angle for these cases to proceed.  However, I am not convinced that the majority of the Supreme Court will agree.  I think the Supreme Court is far more likely, in this current climate, to ban affirmative action altogether.  In her concurrence in Gratz’s case, Justice O’Connor opined that she believed affirmative action might no longer be necessary in twenty-five years.  Almost a decade later, on a new Court that saw fit to take a new affirmative action case, I think affirmative action will be narrowed starting this year.  In this context, I would be surprised if the Sixth Circuit’s ruling in this case was affirmed by the Supreme Court.

Sources:

Michigan affirmative action ban nullified

http://www.cnn.com/2012/11/15/justice/michigan-affirmative-action-ban/index.html?hpt=hp_t4

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/11/6th-CA-ruling-on-Michigan-Prop.-2.pdf

http://www.cnn.com/2012/10/10/justice/court-affirmative-action/index.html

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