When the High Court hears arguments today in Schuette v. Coalition to Defend Affirmative Action, it'll mark the second time this year the justices have taken up the hot-button issue of affirmative action. Attention may be flattering, but where the High Court and race-conscious admissions policies are concerned, such scrutiny typically spells danger.
This case, concerning an anti-affirmative action law, has made much less commotion than did Fisher v. University of Texas, the high-profile affirmative action Supreme Court case from earlier this year. Besides dealing with separate legal issues, the Schuette case is a technical one that's easily misunderstood. Here's a primer for today's case.
What, in plain language, is this case about?
In 2006 Michigan voters passed Proposal 2, a state ballot initiative that amended the state constitution to prohibit discrimination--as well as "preferential treatment"--on the basis of race, ethnicity, sex and national origin in public spheres. The purpose of the law was to torpedo the state's affirmative action programs.
Prior to Proposal 2, students could petition the Michigan Board of Regents or the admissions committee of a public university to consider race as a factor in their admissions policies. But after Proposal 2, a student interested in such a change could not approach the board of trustees, or their local lawmakers, or even the governor. The only way to get a public college to adopt an affirmative action program would be to mount a statewide referendum campaign to repeal Proposal 2, the state constitutional amendment. Meanwhile, those interested in petitioning a university to take their status as a religious minority or their connections to alumni into account, for example, could go the usual route. "Race and race alone is being fenced out and is being subjected to extraordinary burdens," says Mark Rosenbaum, an attorney with the ACLU who is arguing the plaintiffs' case before the Court. The pro-affirmative action plaintiffs will argue that Proposal 2 shifted the political process, but only for people interested in fostering racially diverse campus climates (namely people of color). They will also argue that overturning efforts to confer rights on people of color by limiting their access to the decision-making process is illegal.
In 2011, the Sixth Circuit Court of Appeals agreed with the pro-affirmative action side, overturning Proposal 2 on grounds that the law unfairly shifted access to the political process and violated the federal equal protection clause. In their appeal, lawyers for the defendant, Michigan Attorney General Bill Schuette, have argued that Proposal 2 does not deprive anyone access to the political levers of power, explains Loyola Law School professor Kimberly West-Faulcon, because there is no constitutional right to affirmative action. People only have the right not to be discriminated against on the basis of their race by the government.
"The question here is to what degree does the political process have to change in order for it to be an equal protection violation?" says Victor Goode, an associate professor at CUNY Law School and a board member of the Applied Research Center, which publishes Colorlines.
Didn't the Supreme Court just deal with affirmative action this summer?
Yup. Unlike in Fisher v. University of Texas, the Supreme Court is not actually considering the merits of affirmative action in Schuette. This time around the Supreme Court will examine the constitutionality of state anti-affirmative action laws passed by voter initiatives.
Still, why consider an affirmative action case again so soon?
The case was ripe for Supreme Court review. While the Sixth Circuit overturned Proposal 2, the Ninth Circuit Court of Appeals took the opposite view 16 years ago when it upheld Proposition 209, a nearly identical state initiative passed by California voters in 1996. (The two laws are nearly identical initiatives written and backed by noted anti-affirmative action crusader Ward Connerly.) That conflict begs for some reconciliation, and is classic Supreme Court bait.
But conservative members of the Roberts Court are especially hostile to race-conscious policy, and have made their opposition to affirmative action well-known. "Affirmative action has been a target that several justices have been waiting for and now they have a chance to drive one more nail into its coffin," says Goode.
So is affirmative action on the line, or isn't it?
"Yes and no," says Goode. "But more yes than no." Affirmative action itself is not up for scrutiny this time. And, says West-Faulcon, the Supreme Court could overturn the Sixth Circuit's ruling without touching Grutter, its landmark 2003 affirmative action ruling. Colleges may still consider race in their admissions decisions if they tailor their programs to Grutter.
But the assault on affirmative action is as aggressive as it's ever been. Affirmative action opponents have had a multi-pronged legal strategy: challenge the constitutionality of race-conscious admissions policies while passing anti-affirmative action state laws. Seven states--Michigan, Arizona, California, Florida, Nebraska, Oklahoma and Washington--have affirmative action bans on their books. And the eagerness with which the Roberts Court has seized upon affirmative action and eviscerated the Voting Rights Act does not bode well for race-conscious policies. "Affirmative action is dying the death of a thousand cuts," says Goode.
Legal theory aside, what's at the heart of this case?
In a word: race. Yes, the legal questions of Schuette focus on obscure legal theories surrounding the 14th Amendment's equal protection clause. But equal protection only guards against "invidious discrimination," which the Supreme Court has narrowly defined as purposeful, intentional discrimination directed at a specific group. Think George Wallace blocking the Alabama schoolhouse doors to delay integration. The Supreme Court's understanding of race offers little acknowledgment of the structural, systemic and unconscious ways that racism plays out.
"At its core, that legal question about what the 14th Amendment protects implicates how people feel about race-consciousness," says West-Faulcon. "Does [the 14th Amendment] protect people from subordination and oppression on the basis of race? Or does it give people protection to have a race-blind government?"
In its dealing with affirmative action, but particularly in Shelby v. Holder, this year's major Voting Rights Act case, the Supreme Court clearly sided with the latter. There's a lack of willingness, West-Faulcon says, "to distinguish between race-based policies that are anti-discriminatory and race-based policies which are designed to entrench discrimination." Just look to Justice Clarence Thomas' concurring opinion (PDF) in Fisher v. Texas earlier this year, when he equated the University of Texas' justifications for its race-conscious admissions policies with historical rationalizations for slavery. Slavery!
And if there's room for predictions, Goode's got a harrowing one: "Colorblindness in the 21st century will become what 'separate but equal' was in the 19th."
What's at stake here, especially for black and Latino students who bear the brunt of the educational inequities in this country?
In the immediate, not much. But affirmative action has served as a bulwark against economic and racial stratification. As that inequality grows, and along with it animosity toward measures like affirmative action, students of color will have less access to quality, affordable education, itself one of the most powerful tools for remedying racial inequities.
"It's not an abstract question that belongs in a 14th Amendment classroom and nowhere else," says Rosenbaum. In the wake of the passage of Proposition 209 in California, black and Latino enrollment at the state's most prestigious public university plummeted, he recalls. "One need only look to California and Michigan to see that these amendments change lives, change communities, and change very real opportunities in terms of higher education."