While the Supreme Court was still deciding Fisher v. University of Texas last Term, it granted cert to a case out of Michigan called Schuette v. Coalition to Defend Affirmative Action. Both cases deal with affirmative action, but in very different ways.
Schuette deals with an amendment to the Michigan state constitution (Proposition 2) that was approved by 58% of voters. Proposition 2 bans affirmative action in public education, employment and contracting. The amendment was challenged as violating the federal constitution, and the Sixth Circuit ruled 8-7 to overturn the ban, declaring that “because race-based affirmative action is still permitted by the Constitution, a decision by the voters of the state to prohibit this remedy distorts the political process and imposes a burden based on race that violates the Equal Protection Clause,” according to SCOTUSblog. Adam Liptak cites the court’s problem with the law in that “it restructured the state’s political process by making it harder for disfavored minorities to press for change.” Schuette, the attorney general of Michigan, brought the case to the Supreme Court, where it was granted on March 25.
So how does Schuette differ from last Term’s Fisher? As SCOTUSblog explains, the two cases are “in a sense, mirror images of each other.” Abigail Fisher argued that a policy of affirmative action violates the Equal Protection Clause, whereas the plaintiffs in the current case argue that a policy banning affirmative action violates the Equal Protection Clause.
Although the case won’t be heard until October, there are already several voices speaking on the subject. Among those who submitted briefs against the Sixth Circuit’s decision are the Reason Foundation and the Cato Institute. As the Reason Foundation argues on its website, the Sixth Circuit’s decision is “profoundly counterintuitive” and misapplies Supreme Court precedent. The Cato Institute, joining with several other organizations, argues that “Prop 2 doesn’t violate the Equal Protection Clause under the Court’s ‘political structure’ precedent, which outlaws subtle distortions of governmental processes in a way that places special burdens on the ability of minority groups to achieve beneficial legislation. The measures struck down under that line of precedent differ markedly from Prop 2 because, unlike in those older cases, minorities now have more protections against discrimination.”
On the other side, the NAACP Legal Defense and Educational Fund (LDF) argues that Proposal 2 limits democratic processes for many US citizens. The President and Director-Counsel of the LDF Sherrilyn Ifill says, “Proposal 2 unconstitutionally gerrymanders Michigan’s political process and relegates the critical topics of racial diversity and access to educational opportunity to a separate, distant, and far more cumbersome playing field – one that is unplayable for all practical purposes.” And in the University of Michigan’s brief submitted to the Supreme Court, it explains that there is an inherent political process in admissions at a public school due to the publicly elected Board of Regents, which oversee admissions. The university also argues that Schuette’s claim that race-neutral alternatives suffice for diversity has no evidence with which to support it – and in fact, outlines evidence against that position.
This complex case is set to be argued on October 15. Stay tuned with ISCOTUS for the latest in Schuette and all Supreme Court-related news.