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Michigan Head to the Federal Supreme Court Over Affirmative Action

October 15, 2013

Michigan often gives me stomach pains.  And…I live here. It’s just that Michigan is so often at the backward end of any legal proceeding, news headline, etc. that it’s embarrassing. The case currently headed to the Federal Supreme Court is embarrassing, but not for the reasons you may think. It’s embarrassing because Michigan is still arguing about race in a manner that makes it sound like we belong in the deep south about fifty years ago. We, in Michigan, are discussing the issue of Affirmative Action, whereby preferential treatment is bestowed upon a person based on his or her race. Michigan has had fights about this before, brought by white applicants denied access to college because they did not meet requirements for racially structured programs that would allow admissions to universities, now the case at hand is trying to determine if Michigan’s constitutional amendment to ban affirmative action is, in fact, constitutional.

But whereas Bakke, Grutter, and Fisher all involved lawsuits filed by white applicants that had been denied admission challenging the constitutionality of racially-based affirmative action programs, Schuette will decide if Michigan violated the Equal Protection Clause of the 14th Amendment to the United States Constitution by banning racially and sex-based affirmative action in the context of higher education through an amendment to its state constitution.

The Coalition to Defend Affirmative Action, a group supportive of the continued use of affirmative action programs in Michigan, contends that Proposal 2 violates the Equal Protection Clause of the United States Constitution. The Coalition maintains that Proposal 2 marks a major setback for civil rights in the United States by discriminating against minorities and inhibiting them from achieving equality in society, particularly within the context of higher education.

Moreover, the Coalition argues that prohibiting the use of affirmative action prevents Michigan from achieving diversity in its educational institutions, a goal the Supreme Court has consistently held is a permissible state justification for affirmative action. Indeed, the Coalition points to the dwindling number of minority students in the state’s public medical schools and law schools since the adoption of Proposal 2 to suggest the difficulty in achieving racial diversity in higher education without employing affirmative action measures.

However, Michigan’s Attorney General, Bill Schuette, maintains that Proposition 2 does not run afoul of the Equal Protection Clause and that the voters within a state maintain the right to approve an initiative eliminating affirmative action within the state.

Schuette and other affirmative action opponents maintain that the 14th Amendment’s Equal Protection Clause bars the government from giving preferential treatment to any individuals—whether white or a minority—on the basis of race.

Indeed, at a recent news conference, Schuette quoted Chief Justice John Roberts, who wrote in a recent opinion that the “best way to stop racial discrimination is to stop discriminating on the basis of race.” Because Proposal 2 simply prohibits discrimination, Schuette argues that it is in harmony with the 14th Amendment and is well within the right of Michigan voters to enact.

In an 8-7 decision, the Sixth Circuit Court of Appeals sitting en banc held that Proposal 2 denies members of minority races equal protection of the laws. The Sixth Circuit held that the initiative amounted to an unconstitutional restructure of the political process, reasoning that because Proposal 2 amended the Michigan constitution to eliminate the state’s racial preference programs, a separate constitutional amendment would be required to reinstate them, thereby amounting to an unfair burden on minorities.

My issue with Affirmative Action is that it grants privilege based on race, something over which no person has any control making it an indiscriminate marker, at best, for any awards one way or another. I tend to believe that lowered enrollment by minorities at medical schools or any other schools reflects societal trends of lowered achievement that any minority group faces, and that offering special favors based on skin color is its own form of racism. That said, how does one increase enrollment into top schools? That is a separate issue and one not best addressed by, I think, Affirmative Action. When it all comes down to it, we are still discussing the measure of a person by his or her race, and it sickens me, the measure of their ability to perform in school, which laws apply, who decides how they apply, whether there is a rational basis for limiting or expanding the concept of rights, all based on something we can only lay claim by our birthright. It seems a sad state of affairs, indeed.

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