Constitutional Law—Equal Protection Clause—Using the Ballot Box to Overturn Affirmative Action in University Admissions

by Russ Swafford

Does the Constitution allow for preferential treatment of minorities? Do such policies discriminate against non-minorities? Does affirmative action degrade minorities by categorizing them into racial stereotypes? Why is race singled out for preferential treatment and not other factors? Are such policies really necessary to remedy the harms and injustices committed in the past? If so, who should decide? Universities? States? The federal government? For nearly forty years, American society has tried to answer these questions, and the state of Michigan remains at the heart of the debate. Following the Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger,[2] opponents of affirmative action organized a large movement to amend Michigan’s Constitution and abolish affirmative action in college admissions. Michigan placed the initiative, known as Proposal 2, on the ballot for the November 2006 election.

The Michigan electorate adopted Proposal 2 with 58% voting in favor of the measure, thereby amending Article I of the Michigan Constitution to include § 26, which states the following:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant 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. (2) The state shall not discriminate against, or grant 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 Coalition to Defend Affirmative Action filed suit in the Eastern District of Michigan along with other opposition groups, faculty, as well as current and prospective students from the University of Michigan. The plaintiffs alleged that Proposal 2 was unconstitutional as a violation of the Fourteenth Amendment’s Equal Protection Clause. The district court granted Michigan’s motion for summary judgment, holding that Proposal 2 did not violate the political process doctrine of the Equal Protection Clause because the doctrine only applied to situations where a law injured a minority group, not where a minority group was given preferential treatment on the basis of race.

On appeal, the Sixth Circuit reversed in a 2-1 panel decision, holding that Proposal 2 violated the political process doctrine because it modified Michigan’s political structure in such a way that placed “special burdens on the ability of minority groups to achieve beneficial legislation.” In applying strict scrutiny, the panel determined that Proposal 2 did not satisfy a compelling government interest. Michigan subsequently petitioned for and obtained en banc review.

The Sixth Circuit, sitting en banc, agreed that Proposal 2 violated the political process doctrine and was thereby unconstitutional under the Equal Protection Clause.The court began its analysis by declining to consider the constitutionality of affirmative action since the Supreme Court decided the issue in Gratz and Grutter. The court concluded that Proposal 2 both targeted the admissions policy that primarily benefited racial minorities and placed a discriminatory burden on minorities to participate in the political process. The court also found that Proposal 2 failed strict scrutiny because Michigan did not present a compelling government interest. On certiorari to the United States Supreme Court, held, reversed.[ Proposal 2 is constitutional and the political process doctrine does not apply because Proposal 2 does not specifically injure minorities on account of race, nor does it reallocate political power in a way that hinders minorities from participating in the political process. Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014).

 

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