U.S. Supreme Court Overturns Lower Court, Rules Michigan’s Proposal 2 is Constitutional
The U.S. Supreme Court on April 22, 2014 issued a 6-2 decision in Schuette v. Coalition to Defend Affirmative Action (companion Case Schuette v. Cantrell) overturning the Sixth Circuit Court of Appeals’ ruling and upheld a Michigan voter initiative that bans the practice of race conscious admissions to the state’s public universities. LatinoJustice had joined with the Leadership Conference on Civil and Human Rights and a broad coalition of over 30 notional civil rights groups to submit an amicus brief last Fall urging the Court to find Michigan’s Proposition 2 unconstitutional.
Much of the press coverage on Schuette has incorrectly described it as an affirmative action case, linking it with the Supreme Court’s decision last year in Fisher v. Univ of Texas. The legal questions decided by the Supreme Court in the respective cases however were quite distinct. The Court’s decision in Schuette is about whether or not such a ballot initiative is constitutional under the Equal Protection Clause of the 14th Amendment which the Court answered affirmatively. Schuette did not actually challenge the actual value of race conscious policies. Schuette addressed the constitutional principle that our democratic processes must be open and accessible to all citizens.
Justice Sotomayor’s impassioned dissent which was joined by Justice Ruth Bader Ginsburg expressed grave concern with the majority ruling and underscored the case’s focus on the political process and the necessity to protect all voters involved in that process. In an unusual move, Justice Sotomayor read part of her dissent from the bench to emphasize her disagreement with the six colleagues joining the majority opinion. Justice Sotomayor’s 58-page dissent - longer than the combined efforts of the four other justices’s who wrote, was described by the NY Times as the longest, most passionate and most significant dissent of her career.
In response to the Supreme Court’s 2003 Grutter v. Bollinger decision reaffirming that colleges and universities can consider race in making admissions decisions in upholding the University of Michigan Law School’s admissions’ process that considered a candidate’s race, subsequently, Michigan voters in 2006 passed Proposal 2 a ballot initiative that amended the state constitution to prohibit the consideration of race, gender, color, ethnicity, or national origin in the areas of public employment, public education, and public contracting.
Plaintiffs represented by the NAACP Legal Defense and Educational Fund, the ACLU of Michigan, and the Detroit Branch of the NAACP are racially diverse and include University of Michigan faculty who state that diversity is essential to the student body, students of color who have benefitted from diversity at the University, and white students and applicants who refuse to enroll in a university that doesn’t value diversity sued contending that the proposal would violate the Equal Protection Clause, by placing an unconstitutional burden on protected groups and causing them lasting harm. In March 2008, the federal district court in Michigan dismissed the lawsuits challenging Prop 2.
On appeal, the Sixth Circuit Court of Appeals in July 2011 struck down (2-1) Michigan’s ban on equal opportunity programs holding that the ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities. The Sixth Circuit then granted en banc review. LatinoJustice had joined with more than a dozen other civil rights organizations in an amicus brief contending that Proposition 2 is unconstitutional because it indoctrinates one group’s interests into the state constitution, effectively destroying minorities’ and women’s ability to even advocate for their interests without seeking yet another constitutional amendment.
On November 15, 2012, the Sixth Circuit in an 8-7 ruling found that parts of Michigan’s law banning equal opportunity programs at public universities are unconstitutional. The court found that Prop 2 violated the Equal Protection Clause of the 14th Amendment by presenting an extraordinary burden to minority students which “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Michigan was subsequently granted leave last year to appeal to the Supreme Court. In Fisher, the Supreme Court last year in a 7-1 decision reaffirmed the principle that universities may consider racial and ethnic diversity as a factor on their admissions’ policy, endorsing its prior holdings in Bakke and Grutter that affirmation action plans are deserving of judicial deference when furthering a state’s compelling interest in fostering a diverse student body.
The Supreme Court remanded Fisher back to the Fifth Circuit Court of Appeals for further consideration in applying the strict scrutiny standard of review of UT Austin’s race conscious admissions plan to determine whether it was sufficiently narrowly tailored to meet the University’s compelling interest in diversity which the Circuit had not done previously. The Fifth Circuit has yet to issue a decision after the case was argued anew last fall.