The Weight of Fisher: Oral Argument in Coalition to Defend Affirmative Action v. Regents of the Univ. of Michigan

Photo of Stephen MenendianThis is a guest blog post by Stephen Menendian, Senior Legal Associate at the Kirwan Institute for the Study of Race & Ethnicity at The Ohio State University.

With the Supreme Court having recently announced that it would review the University of Texas’ affirmative action plan in Fisher v. Texas, this week the 6th Circuit Federal Court of Appeals reviewed the constitutionality of the Ward Connerly-inspired anti-affirmative action ballot initiative amending the Michigan Constitution.  In a wide ranging oral argument which I attended Wednesday, members of the Court repeatedly pressed the litigants about the potential impact of Fisher on their case.   The Fisher case hung like a pall in the room.

Last July, a panel of Sixth Circuit judges ruled that Proposal 2, the Michigan anti-affirmative action ballot initiative, violated the 14th Amendment of the U.S. Constitution by unfairly restructuring the political process.   The equal protection clause of the 14th Amendment is more than a substantive guarantee of equal rights, it is also a procedural guarantee that the majority may not impose special burdens on the minority in the political process.   By elevating the authority to make admissions decisions regarding diversity and affirmative action from university faculty committees to the state constitution, the ballot initiative impermissibly restructured the political process.  The equal protection clause guarantees that all groups play by the same rules.  Few other groups would have to move through the same hoops to achieve beneficial legislation.   For example, alumni wishing to increase legacy admissions would not have to amend the constitution to achieve their goal.

In Fisher, the U.S. Supreme Court is likely to strike down the University of Texas’s admissions program as insufficiently tailored to protect the rights of nonminority students.  As I suggested here, the success of the Texas 10% plan in generating a broadly diverse body is particularly damaging to the argument that further race-conscious efforts are needed to promote diversity.  However, it is also unlikely that the Supreme Court would ban affirmative action entirely.  Justice Kennedy in both his dissent in Grutter and controlling concurrence in Parents Involved affirms that promoting diversity in education is a compelling governmental interest that justifies the use of race in admissions and student assignment.   Nonetheless, should the Court rule more broadly that affirmative action is never allowed, then the right at issue – to pursue beneficial, but legally permissible admissions policies to increase minority representation by looking at each applicants race – would not be foreclosed by Proposal 2.  Consequently, there would be no 14th Amendment violation, since the state constitution would not be taking away anything that was otherwise permissible under federal law.   Given Justice Kennedy’s plain views, this seems incredibly unlikely.

Although Coalition to Defend Affirmative Action v. Regents of the Univ. of Michigan concerns affirmative action, it is better understood as a political process issue.   The 6th Circuit panel did not strike down the referendum amending the Michigan constitution because it prohibits affirmative action, but because it interfered with the right of certain minority groups to pursue beneficial policies in higher education from their original political unit, universities, and therefore imposed special, unfair, burdens on those groups.  There is nothing more fundamental in a democracy than ensuring that all groups play  by the same rules, and that a majority, by virtue of its superior numbers, cannot change the rules of the game to disadvantage certain groups.  Democracy requires fair rules.

Defenders of Proposal 2 argue that the referendum does nothing more than ensure equality regardless of race.   Yet, as our nation’s history vividly illustrates, not all laws that appear racially neutral are in fact so.   The doctrine of ‘separate, but equal’ purported to provide equal provision of government benefits and protection of law while doing anything but.  Here, while purporting to protect both minority groups and nonminority groups alike, the political burden of these amendments fall squarely on minority groups.  When a majority passes a ballot initiative amending a state constitution that places special burdens on minority groups that no other group must contend with, they are effectively rigging the game.   Here, the hurdle is of the highest magnitude: minorities must seek to amend the state constitution before seeking beneficial legislation in their interests, legislation that is clearly permissible under federal law.

This case and Fisher arc like two great pincers slowly sweeping across the landscape of American law.   At a time when this nation is racing toward a non-white majority, and the school age population is almost there, our educational system remains deeply inequitably.   The endemic patterns of racial segregation in our primary schools are largely a consequence of widespread patterns of de facto residential segregation.   The pipeline to higher education does not reflect the diversity of our nation as a whole.   Should the courts squeeze off what little room institutions of higher education have to ensure that these pathways remain visibly open to qualified individuals of all races, the next generation of this nation’s leaders will, as Justice O’Connor warned in Grutter, lose “legitimacy in the eyes of the citizenry.”  At that point, it will be too late.

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