Published Online: October 1, 2013
Published in Print: October 2, 2013, as High Court to Tackle Race Case

Supreme Court to Tackle Race Case

Supporters of Proposal 2 gather during a rally on the University of Michigan's Diag in Ann Arbor in 2006.
—Carlos Osorio/AP-File

Issue: Mich. preference ban

Combatants in the long-running war over affirmative action in education are lined up again in the U.S. Supreme Court. But the coming battle is a little different from those that produced well-known high court landmarks involving race and admissions.

Early in the new court term that opens next week, the justices will weigh a case about a 2006 Michigan ballot measure that prohibited racial preferences in education and other areas of state and local government. Last year, a federal appeals court struck down the measure as it applies to admissions policies at state colleges and universities.

The measure violated the 14th Amendment equal-protection rights of racial minorities in the state by making it harder for them to achieve a political goal, namely, a race-conscious admissions policy, the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in an 8-7 ruling.

Many people were poised for a landmark decision last term on the use of race in admissions in the case known as Fisher v. University of Texas at Austin. But after months of deliberation, the Supreme Court issued a modest 7-1 decision that a lower court had failed to hold the university's race-conscious admissions plan to the demanding burden of "strict scrutiny." The high court sent the case back to the U.S. Court of Appeals for the 5th Circuit, in New Orleans, which has asked for new legal briefs.

On the Docket

The U.S. Supreme Court’s 2013-14 term opens Oct. 7, with the justices set to hear arguments on several cases with significance for education at the ballot box, at school board meetings, and in employment.

RACE DISCRIMINATION
Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682)

The high court will look at a 2006 Michigan ballot initiative which barred the use of racial preferences in education and the rest of government in the state. A federal appeals court held that the measure violated the 14th Amendment’s equal-protection clause by removing the ability of college administrators to consider race to the extent they are allowed to do so by Supreme Court opinions. Oral arguments are set for Oct. 15.

AGE DISCRIMINATION
Madigan v. Levin (No. 12-872)

This case concerns whether state and local government employees, including teachers and other school workers, may bring age-discrimination claims under the 14th Amendment’s equal-protection clause rather than the federal Age Discrimination in Employment Act of 1967, which has more comprehensive rules and procedures designed in part to limit lawsuits. The case has attracted competing friend-of-the-court briefs. The National School Boards Association argues that the ADEA provides all the protection that workers need from age bias. The National Education Association argues that the statute was aimed at protecting a distinct age class of older workers with specific remedies, while Congress did not mean to preclude a broader class of workers from also being able to turn to the equal-protection clause for age-discrimination claims. Arguments are Oct. 7.

CAMPAIGN FINANCE
McCutcheon v. Federal Election Commission (No. 12-536)

Both the American Federation of Teachers and the National Education Association have chimed in as the court returns to the issue of campaign finance with a case that some have called a sequel to the controversial 2010 Citizens United decision. It upheld unlimited independent political expenditures by corporations, labor unions and so-called super political action committees. At issue in the new case is the aggregate limit that an individual may contribute to all federal candidates and parties in a two-year election cycle. The NEA, citing its interest in “fair elections and clean government,” filed a friend-of-the-court brief in favor of upholding the limits. The union says they help combat the appearance of corruption without impinging on the free expression rights of political donors. The aft has joined a brief making similar points. Oral arguments are Oct. 8.

GOVERNMENT PRAYERS
Town of Greece v. Galloway (No. 12-696)

The justices will consider whether prayers delivered at the beginning of town board meetings violate the First Amendment’s prohibition against government establishment of religion. The New York town, with the support of the Obama administration, argues that its prayers are in the tradition of the state legislative prayers upheld by the Supreme Court. The challengers contend that the prayers are overwhelmingly delivered by Christian ministers who typically invoke Jesus Christ. They say that a decision upholding the town’s prayers would allow school boards to engage in similar practices, despite two federal appeals court rulings that have barred the practice under the establishment clause. Arguments are Nov. 6.

"After a huge buildup, the court in Fisher delivered a dud," Irving L. Gornstein, the director of the Supreme Court Institute at Georgetown University Law Center, in Washington, said at a panel discussion last week.

The case from Michigan, Schuette v. Coalition to Defend Affirmative Action (No. 12-682), is the top education case in the Supreme Court's new term. Other cases of interest to educators involve age discrimination, campaign finance, and prayers at public meetings of government boards.

Lobbying for Admissions

The justices could yet add more education cases to the docket this term, including appeals on special education, dog sniffs of student backpacks, and the proper role of school resource officers.

The Michigan case has attracted a total of 30 friend-of-the-court briefs on both sides. Some of those are still fighting the last battle, stressing arguments about the constitutionality of race-conscious admissions plans. Indeed, in practical terms the justices' ruling could affect the future of affirmative action in Michigan and elsewhere.

But the 6th circuit court's ruling was based on a legal theory known as the "political process" or "political restructuring" doctrine.

The theory works like this: Under Michigan law, the state's colleges and universities have plenary, or unqualified, power to supervise themselves through their governing boards. Those boards generally delegate admissions policies to faculty and administrative committees. (In other words, state lawmakers generally may not interfere.)

A student who wants to lobby a university's board of regents or the admissions committee for a policy favoring, for example, legacy preferences (being the son or daughter of an alumnus) or a preference to residents of the state's Upper Peninsula, may do so unencumbered.

But because of Proposal 2, which amended the state constitution, a member of a minority group may not simply go to the regents or admission committee to lobby for a racial preference that is permissible even under the Supreme Court's complex rulings on affirmative action. That person would face the heavier political burden of trying to remove the state constitutional limitation.

The 6th Circuit court majority said Michigan's Proposal 2 violated the equal-protection clause as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a local fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

Fails 'Strict Scrutiny'

The appeals court said race-conscious admissions policies mainly benefit racial minorities. It said that Proposal 2 brought about a significant change in the ordinary political process and that it was a racial classification that did not survive strict scrutiny, or the highest level justification needed to uphold a government policy.

Michigan Attorney General Bill Schuette, a Republican who is defending Proposal 2, argues the 6th Circuit turned logic on its head.

"It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the equal-protection clause by discriminating on the basis of race and sex," Mr. Schuette argues in his brief. "The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state. Nothing in the [U.S.] Constitution bars the people of Michigan from making that choice."

Michael E. Rosman, the general counsel for the Center for Individual Rights, a Washington group opposed to race-conscious admissions plans, helped write a brief calling on the high court to overrule its political-restructuring precedents.

"This is about whether the people of a state have the authority to change the admissions system of a state university if they disagree with it," he said in an interview. "That's kind of like democracy."

Fostering Diversity

On the other side is a complicated lineup of parties fighting Proposal 2. They include a group of prospective applicants to Michigan colleges, a separate group known as By Any Means Necessary, and the University of Michigan and other state higher education institutions.

"What Michigan did … was to create a distinct political process for constitutionally permissible race-conscious admissions policies," said Mark Rosenbaum, a lawyer with the American Civil Liberties Union and a professor at the University of Michigan Law School, who will argue the case on behalf of one of the groups of challengers.

"Michigan universities grant [admissions] preferences all the time," he said, and while children of alumni, athletes, or Upper Peninsula residents could seek such preferences, "if you have a racialized identity, you go to a different political process—you have to repeal a state constitutional amendment."

"By making race the fissure in the political process, that in fact … increases the salience of race," Mr. Rosenbaum said.

He added that the "stakes are extremely high" because the Michigan ballot initiative has reduced the enrollment of minority students for all groups except for Asians and Asian-Americans. For example, African-American undergraduate enrollment at the University of Michigan in Ann Arbor has dipped from 7 percent in fall 2006 to 4.7 percent in the fall of 2012.

Mr. Schuette gets into some of the nitty-gritty of the merits of affirmative action by arguing in his brief that universities can attract a diverse student body without racial preferences. He says California has successfully used socioeconomic factors to boost diversity since that state's Proposition 209 outlawed racial and ethnic preferences in education in 1996.

In a section covering much of the current debate over racial preferences, socioeconomic alternatives in California and Texas, and theories about some minority students' lack of preparation for elite institutions, Mr. Schuette writes: "In sum, sociological and academic reasons justified voters' decision to end race-conscious admissions, and that is precisely the path that Michigan's citizens chose for their own public universities."

View From California

The challengers have also received friend-of-the-court briefs from K-12 groups such as the National Education Association and the National School Boards Association. Although Michigan school districts come under Proposal 2, their advocates have mostly stayed out of the legal battle that has focused on higher education in the state.

But the Michigan case is being watched closely in California, where a decision for the challengers would likely bring a renewed case against Proposition 209.

The Los Angeles and San Francisco districts, in a friend-of-the-court brief on the side of the Michigan challengers, take issue with the Michigan attorney general's views about the long-term effects of the California ballot initiative.

Related Blog

"Because the [districts] have now lived under Proposition 209 for 13 years, they have experienced firsthand the toll that prohibiting race as a consideration in public school assignment and admissions to the University of California has taken on public education for the youth in [their] communities," the brief says.

However, while they cite statistics such as admission rates and "yield" rates for minority students in California's flagship university system, the school districts don't refute Michigan's argument that proportions of minority-student enrollment have largely recovered in the University of California system after an initial decline for several years.

The case is set for oral arguments on Oct. 15.

Vol. 33, Issue 06, Pages 1,22-23

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