SCOTUS Considers Voter Ban On Affirmative Action Today

Today there will be an important oral argument before the United States Supreme Court that could determine whether race-conscious remedies of past discrimination conducted by public and private entities (i.e. also known as affirmative action) will have a future in the United States.

The High Court will consider Schuette v. Coalition to Defend Affirmative Action, 12-682. SCOTUS blog summarizes the issue as: "Whether 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."

The Los Angeles Times reports that we in California have an interest in this legal skirmish over Michigan's voter-approved ban on affirmative action because California has a similar measure in its state constitution thanks to the 1996 passage of Proposition 209. In fact voters in Michigan, California, Arizona and Washington have all passes similar ballot measures banning "preferential treatment" based on race or sex in public education.

[Mark] Rosenbaum and the American Civil Liberties Union sued in 1996 to block the California ban from taking effect, but the U.S. 9th Circuit Court of Appeals rejected the challenge, and the Supreme Court refused to hear the case. 

Now, in the Michigan case, Rosenbaum gets a chance to make a constitutional argument against state bans on affirmative action that would apply in California as well. He does not contend that race-based policies are required. Instead, he relies on what lawyers call the "political restructuring doctrine." Under it, Rosenbaum argues, Michigan unfairly "rigged" the political process by taking away from university officials the power to set admissions policy and instead writing it into the state constitution. 

By adopting the state ban, the voters — most of whom were white — deprived minority students of a right to press state officials to adopt affirmative action policies. This is "changing the political process along racial lines to prevent the state from taking constitutionally permissible race-conscious action," he said. 

A Michigan-based group called the Coalition to Defend Affirmative Action goes further and describes the state's policy as a "new Jim Crow" system akin to the "separate but equal" doctrine that the high court established in Plessy vs. Ferguson in 1896.

It is not a good sign that Justice Elena Kagan has recused herself from considering the case so that there will only be 8 voting members participating in the decision. However if by some miracle there is a 4-4 split, the lower court's 6th Circuit en banc 8-7 decision that struck down the ballot measure would go into effect.