Law & Courts

High Court Weighs Mich. Affirmative-Action Ban

By Mark Walsh — October 21, 2013 4 min read
Nakia Wallace, center, a Detroit high school student, protests at the U.S. Supreme Court in support of affirmative action. The high court is weighing a Michigan law barring its use in higher education.

Conservatives on the U.S. Supreme Court appeared skeptical last week that Michigan’s voter-enacted prohibition on affirmative action in higher education violates the 14th Amendment’s equal-protection principles.

The 2006 ballot measure known as Proposal 2 was not a “racial classification,” as its opponents suggest, Justice Antonin Scalia said during the Oct. 15 oral arguments in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682). “It’s a prohibition of racial classifications.”

The Michigan ballot initiative also bars race preferences in K-12 public schools and other areas of state government, but the case before the high court concerns the measure’s prohibition of race preferences in college admissions. Nevertheless, the Supreme Court’s decision could have wide implications.

Chief Justice John G. Roberts Jr., another of the court’s conservatives on race issues, said one way to look at the equal-protection clause was that it takes “race off the table.”

“Is it unreasonable for the state to say, ‘Look, race is a lightning rod.’ … So why don’t we say we want [colleges] to do everything [they] can without having racial preferences?”

Paths to Diversity

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the ballot measure made it more difficult for racial minorities to achieve a race-conscious admissions policy. That was a significant change in the ordinary political process and a racial classification that violates the Supreme Court’s “political restructuring” doctrine, the appellate court said.

The doctrine stems from two Supreme Court precedents. 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.

Those cases, especially the Seattle busing case, figured prominently in oral arguments.

“There’s no way to distinguish Seattle from this case, nor the Hunter case,” said the American Civil Liberties Union’s Mark D. Rosenbaum, one of two lawyers arguing against the Michigan measure. Both cases would have to be overruled for the Supreme Court to be able to reinstate the ballot measure, he said.

The Proposal 2 opponents found strong allies in two of the court’s more liberal members.

“The rationale of Seattle is that notion that we can’t put hurdles in the way of a disadvantaged minority,” said Justice Ruth Bader Ginsburg, one of the court’s liberals who seemed more sympathetic to the group challenging Proposal 2.

Justice Sonia Sotomayor, who has discussed the role that affirmative action played in her own Ivy League educational career, aggressively challenged the state’s arguments.

“This amendment is stopping the political process,” she said. “It’s saying the board of regents can do everything else in the field of education” but adopt affirmative action.

John J. Bursch, Michigan’s solicitor general, said, “It does not violate equal protection to require equal treatment” of race. He offered the court several narrow legal paths under which the Michigan initiative could be upheld.

A Political Process

Justice Elena Kagan is not participating in the case, presumably because she worked on it when she was U.S. solicitor general. Michigan must attract five votes on the court to overturn the 6th Circuit ruling striking down Proposal 2. (A 4-4 tie on the court would result in the appeals court ruling being affirmed without an opinion.)

Justice Anthony M. Kennedy, who is usually the pivotal vote in cases about race, told Mr. Bursch that he had trouble distinguishing the 1982 Seattle decision from the Michigan case.

But he pressed the lawyers attacking Proposal 2 about why the equal-protection concern should kick in with a ballot initiative eliminating affirmative action in admissions, but not if the board of regents or other state officials make such a decision.

Noting that Michigan’s regents had delegated the decisions about whether to have race-conscious admissions policies to state university faculties, Justice Kennedy said, “Why is ... a faculty decision any less outcome-determinative than what the voters would say?”

“That’s part of the ordinary political process,” said Mr. Rosenbaum. But he and Shanta Driver, the lawyer representing the Coalition to Defend Affirmative Action, stressed that putting the question to voters put the issue on “a separate and unequal political track,” as Mr. Rosenbaum put it.

A decision in the case is expected by late June.

What Shutdown?

Separately, as the Supreme Court carried on business as usual last week despite the shutdown of much of the rest of the federal government, the justices:

• Declined without comment to hear an appeal from black parents that a student-assignment plan for the Metropolitan Nashville school district led to unconstitutional resegregation of the schools. The appeal was Spurlock v. Fox (No. 13-196).

• Dismissed a case about age-discrimination claims by public employees that was being watched closely by groups representing teachers and school boards. The Oct. 7 oral arguments in Madigan v. Levin (No. 12-872) had revealed procedural problems with the case, so the high court’s dismissal did not come as a surprise.

A version of this article appeared in the October 09, 2013 edition of Education Week as Appeal Argued on Affirmative-Action Ban

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Student Well-Being Webinar
Equity, Care and Connection: New SEL Tools and Practices to Support Students and Adults
As school districts plan to welcome students back into buildings for the upcoming school year, this is the perfect time to take a hard look at both our practices and our systems to build a
Content provided by Panorama Education
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Classroom Technology Webinar
Here to Stay – Pandemic Lessons for EdTech in Future Development
What technology is needed in a post pandemic district? Learn how changes in education will impact development of new technologies.
Content provided by AWS
School & District Management Live Online Discussion A Seat at the Table: Strategies & Tips for Complex Decision-Making
Schools are working through the most disruptive period in the history of modern education, facing a pandemic, economic problems, social justice issues, and rapid technological change all at once. But even after the pandemic ends,

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Court Restores Officers' Immunity Over Seizure of High School Athletes in Peeping Probe
A federal appeals court ruled in the case of two campus officers involved in detaining football camp participants for hours of questioning.
4 min read
Image of cellphones.
RyanJLane/iStock/Getty
Law & Courts Appeals Court Weighs Idaho Law Barring Transgender Female Students From Girls' Sports
The three-judge federal court panel reviews a lower-court ruling that blocked the controversial statute and said it was likely unconstitutional.
4 min read
Image of a gavel.
Marilyn Nieves/E+
Law & Courts Federal Appeals Court Backs Socioeconomic-Based Admissions Plan for Boston 'Exam Schools'
The court denies an injunction to block the plan for next year and says considering family income in admissions is likely constitutional.
3 min read
Image shows lady justice standing before an open law book and gavel.
iStock/Getty Images Plus
Law & Courts U.S. Supreme Court Wary About Extending School Authority Over Student Internet Speech
In arguments, the justices looked for a narrow way to decide a case about the discipline of a cheerleader over a profane Snapchat message.
7 min read
Members of the Supreme Court pose for a group photo at the Supreme Court in Washington on April 23, 2021.
Members of the U.S. Supreme Court pose for a group photo at the court on April 23. The justices heard arguments Wednesday in a major case on student speech.
Erin Schaff/The New York Times via AP