Another Affirmative Action Case for the Supreme Court

Michigan Attorney General Bill Schuette

The Chronicle of Higher Education notes that the U.S. Supreme Court is being urged to take up Michigan Attorney General Bill Schuette’s appeal of a Sixth Circuit Court of Appeals decision that ruled a voter-supported state constitutional ban on racial preferences in higher education unconstitutional last November. Affirmative action advocates also want the Supreme Court to take up the decision, hoping it will produce a ruling against all propositions to end affirmative action across the nation.

The narrow 8-7 Sixth Circuit decision was based on the idea that there are many sorts of preferences in college admissions.  Universities may choose to show preference for students who will contribute to athletic programs, to children of alumni, or to dependents of faculty. In singling out racial preferences, the mandate placed a burden on those who received preferences because of race. The mandate did not ban legacy admissions or special consideration of athletes. While legacy and other applicants could simply lobby an admissions office to favor children of alumni, minority applicants seeking racial preferences would need to mount a campaign to change the state constitution.Therefore, according to the federal court, the ban places a heavier legal burden on one form of preference among many, and thereby treats the beneficiaries of race-based policies differently from the beneficiaries of legacies. The Sixth Circuit ruled that this differential treatment was a violation of the Equal Protection Clause of the Fourteenth Amendment.

One big problem with this reasoning is that the Supreme Court has consistently indicated that racial preferences do not constitute one preference among many. In the majority opinion for the 2003 Grutter v. Bollinger decision, Justice O’Connor approvingly quoted the 1984 Palmore v. Sidoti decision when she wrote “we are mindful, however that ‘[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.’” I do not think that anyone has ever suggested that the Fourteenth Amendment contemplating eliminating legacies or athletic admissions. Justice O’Connor wrote further that “racial classifications, however compelling, are potentially so dangerous that they may be employed no more broadly than the interest demands.”

Given what seems to be a glaring contradiction between the Sixth Circuit view of racial preferences as one kind of preference among many and the Supreme Court view of racial preferences as an especially dangerous practice and as a fundamental target of the Fourteenth Amendment, I speculate that if the Court takes this up, it will strike down the Sixth Circuit decision.