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Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014)

In this case the U.S. Supreme Court overturned a lower court ruling that had found unconstitutional provisions of an amendment to the Michigan Constitution banning affirmative action affecting Michigan's public higher education institutions. The Court noted that the question was ". . . not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions." The Court held that because there was no specific injury, voters had the right to determine whether race-based preferences should be permitted by state entities and therefore the amendment banning affirmative action was constitutional. The Court made clear, however, that this ruling does not change the principle outlined in Fisher v. University of Texas that, "the consideration of race in admissions is permissible, provided that certain conditions are met."

This affirmative action case comprised two separate lawsuits challenging a November 2006 amendment to the Michigan Constitution prohibiting all “discriminat[ion] against or grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  The constitutional amendment effected two significant changes to the admissions policies at Michigan’s public higher education institutions.  It “eliminated the consideration of race, sex, color, ethnicity, or national origin in individualized admissions decisions”—although other admissions criterion, such as grades, athletic ability, geographic diversity, or family alumni connections were not prohibited.  And, it effectively prevented Michigan’s public higher education institutions or their boards from revisiting this issue except by repeal or modification of the Michigan Constitution.  

The plaintiffs/respondents contend that the Michigan constitutional amendment violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In March 2008, a federal district court ruled that the amendment was constitutional, and the plaintiffs appealed to the Sixth Circuit Court of Appeals.  In July 2011, a panel of the Sixth Circuit Court of Appeals reversed the district court’s ruling, holding that the portions of the amendment that affect Michigan’s public higher education institutions “impermissibly alter the political process in violation of the Equal Protection Clause.” The Sixth Circuit granted Michigan Attorney General Bill Schuette’s petition for an en banc review of the panel’s decision, and in November 2012, the Sixth Circuit, in a remarkably divided opinion, reversed the district court’s judgment, finding the provisions of the amendment affecting Michigan's public higher education institutions are unconstitutional.

The Supreme Court of the United States granted Schuette’s petition for writ of certiorari in March 2013.  The issue before the Supreme Court was “[w]hether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” Schuette argued that “because Section 26 of the Michigan Constitution lacks discriminatory intent it is not a racial classification, and thus the Equal Protection Clause and political-restructuring doctrine do not apply.”  Respondent Coalition to Defend Affirmative Action contended, however, that “Section 26 contains racial classifications because it targets racially-conscious admissions plans in public schools.”

The AAUP joined a coalition brief, authored by American Council on Education and joined by 47 other higher education related organizations, which was submitted on August 30, 2013. The brief argued that while Schuette and his supporting amici raise policy questions about the educational benefits of racially diverse student enrollments and offer commentary on the methods they believe colleges and universities should employ to attain diversity, the constitutionality of the pursuit of racial diversity in higher education is not at issue in this case. The issue was whether the Michigan amendment distorts the political process against racial and ethnic minority voters in Michigan, thereby violating the Fourteenth Amendment to the United States Constitution.  

The brief argued that the constraints Schuette and his amici supporters propose on the lawful tools by which colleges and universities may attain diversity are at odds with the Supreme Court’s decisions in Fisher v. Texas and Grutter v. Bollinger and the “longstanding… tradition of governmental forbearance in higher education.” Further, that “whether and how, within the bounds of the Equal Protection Clause, to pursue the educational benefits of a diverse student body are questions of academic policy and practice properly assigned to the judgment of colleges and universities.” The brief reiterated the Supreme Court’s decision in Grutter, in which it endorsed “deference to institutional judgment that student diversity is a compelling interest, reasoning that those responsible for higher education are best qualified to evaluate the cumulative information – related, for instance, to campus dynamics, cognitive processes, nurturance of moral reasoning, and pursuit of the institution’s particular educational mission – necessary to make that judgment.”  The brief admonished that courts and States should “resist substitut[ing] their own notions of sound educational policy for those of the school authorities which they review,” and concludes that “overrid[ing] those academic judgments by State constitutional amendment would truncate educators’ traditional authority, an authority that educators have exercised to the immense benefit of this nation from the nation’s beginnings to the present day.”

On April 22, 2014, the Supreme Court issued a decision overturning the appellate court decision and finding the ban on affirmative action constitutional. The Court took pains to note that it was not ruling on the constitutionality of affirmative action itself. The Court explained. “Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ---, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

The Court proceeded to find that the amendment to the Michigan Constitution was itself constitutional. In doing so the Court found that because there was no specific injury, voters had the right to determine whether race-based preferences should be permitted by state entities and therefore the amendment banning affirmative action was constitutional. The opinion of the Court concluded, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”

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