Affirmative Action Times Two before the Supreme Court

By Andrew Thomas | April 25, 2013

University of Texas, Austin/photo: by Brandon WattsUniversity of Michigan/photo: Becas Education USA

Two cases currently before the U.S. Supreme Court will clarify where the high court stands on the constitutionality of racial preferences in college admissions. The result may be a green light for such programs—or, more likely, fresh new blows and a judicially hastened end for race-based practices in higher education and other government institutions.

The twin cases that have wound their way to the court’s docket originated in Texas and Michigan. Different provocations led to each lawsuit being filed. But both involve the same central issue of whether such preferences pass muster with the U.S. Constitution.

In one case, for which the court entertained oral argument last October, the court is considering whether the University of Texas’s affirmative-action program violated the Fourteenth Amendment’s Equal Protection Clause. Texas law ensures that more than three-fourths of freshmen are admitted automatically to the University of Texas based on their standing in the top 10 percent of their high-school classes. Other students must compete for the remaining slots based on a number of factors, including race. UT officials admit openly that they consider race as a factor when admitting students to these open freshman spots. Denied admission to the University of Texas, a white student named Abigail Fisher went to court to challenge the university’s admissions program.

Fisher v. University of Texas at Austin recently gained a partner for the attention of the high court. In March 2013, the court accepted a second affirmative-action case for review, bearing the colorful name Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary. The case marks the second time in a decade that the state of Michigan has sent to the Supreme Court a major case that directly challenges racial preferences in higher education.

Like much of American academia, the University of Michigan has used affirmative action to boost enrollment of minority students by lowering school admission standards. Ten years ago, Michigan students who were denied admission challenged the practice, spawning a pair of Supreme Court decisions in 2003. These struck down the school’s undergraduate admissions formula, which automatically boosted minority applicants to ensure a higher number of minority students, but allowed the University of Michigan Law School to utilize race as a more amorphous “plus factor” for its admissions.

In response, affirmative-action opponents campaigned for a voter initiative to amend the Michigan Constitution and prohibit race-and sex-based discrimination or preferences in public education, employment and contracting. In November 2006, Michigan voters approved the measure with 58 percent of the vote. Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington state all have adopted similar reforms.

In court, the results have been very different from those in the political arena. Supporters of affirmative action have been victorious to date in the Texas and Michigan cases. In Fisher, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the UT admissions policy. The full Fifth Circuit Court of Appeals refused to rehear the case by a vote of 9-7. The majority said the university’s admissions program was “narrowly tailored,” thereby complying with the Supreme Court’s rulings in the Michigan affirmative-action cases from 2003.

Civil-rights groups wasted no time in mobilizing to block the will of the voters in Michigan, suing to block the affirmative-action ban the day after the election. In Schuette, the U.S. Circuit Court of Appeals for the Sixth Circuit ultimately struck down the ban as applied to college admissions in Michigan. The decision, roundly condemned in legal circles for its strained reasoning, held that Michigan voters’ attempt to ensure equal protection of the laws and color-blindness in college admissions itself violated the Equal Protection Clause of the U.S. Constitution.

The stated reason: the voter ban “restructured the state’s political process by making it harder for disfavored minorities to press for changes.” In particular, instead of being able to merely lobby lawmakers, university trustees and other people who control university admissions processes, supporters of race-based policies would have to pass another voter reform and undo the previous constitutional amendment to safeguard affirmative action in Michigan. That burden “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

If such activist reasoning is familiar to conservatives, it is because such has been the stock–in-trade for federal litigation in this area of the law for decades. That the Supreme Court took up the case suggests it is ready, if nothing else, to restore order and provide clarity.

Indeed, the court’s decision to accept the Michigan case before making a decision in the Texas one was unusual. The normal practice is to wait and issue a ruling on the first case before taking up another case on a similar or related issue. The Michigan case involves a public vote by the people of a state, suggesting that concern for states’ rights and the Tenth Amendment might be a factor. Also, the underlying Michigan law is much broader. The justices indicated they would hear argument on whether Michigan or any state can ban race-based or sex-based preference in government actions, not just university admissions.

There is already some indication of where the court may be headed. In the October 2012 oral argument on the Texas case, Justice Anthony Kennedy, the likely swing vote on the court, expressed skepticism about the race-based policies. The liberal bloc, expected to support the race-conscious policies, shrank from four to three members because of the withdrawal of Justice Elena Kagan, as she was U.S. solicitor general in the early phases of the case.

The high court under Chief Justice John Roberts has made affirmative action and race-based policies a recurring issue on its docket in recent years. Should a firm court majority take shape that is hostile to these practices—and, in particular, should Justice Kennedy swing in favor of knocking down these policies—such rulings would cement a major legacy of the Roberts court.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.