Supreme Court to decide on Michigan affirmative action fight — again

posted at 1:41 pm on October 14, 2013 by Erika Johnsen

Back in the 2003 case of Grutter v. Bollinger, the Supreme Court decided in a 5-4 vote that the University of Michigan Law School could indeed grant admissions preferences to minority applicants in the interests of fostering diversity on campus — but then in 2006, 58 percent of Michigan voters supported a ballot initiative that amended the state’s constitution and thereby prohibited Michigan’s public-education institutions from providing preferential treatment to anyone on the basis of race of ethnicity.

The issue that will hit the Supreme Court this week in Schuette v. Coalition to Defend Affirmative Action, then, is whether or not state voters are allowed to effectively ban affirmative action from public-school admissions. In March 2012, the Sixth U.S. Circuit Court of Appeals just barely decided that the contested “Proposal 2″ is unconstitutional, arguing that the measure forbids minorities from seeking admissions preferences but allows others, such as alumni/donors/athletes, to request favored treatment from state universities — which the judges supposed is in and of itself a form of racial discrimination. SCOTUS is now taking on the challenge to that decision, via the WSJ:

Michigan’s attorney general, Bill Schuette, scoffs at that finding. “In Michigan, the only thing we’re discriminating against is discrimination. Period,” Mr. Schuette, a Republican, said last week. While racial diversity remains a worthwhile aspiration for public universities, “we’re saying we want to achieve this goal by constitutional means, not by any means necessary,” he said.

That remark was aimed at a group that challenged Proposal 2 within hours of its adoption: the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. The Detroit-based group, which takes its name from a phrase popularized by Malcolm X, the slain 1960s activist, describes Proposal 2 in court papers as a “legal sword” that champions of “white privilege” can “wield whenever and wherever a university admits what the opponents believe are too many minority students.”

“We don’t believe in the colorblind Constitution,” the coalition’s attorney, George B. Washington, said in an interview. “We’re making what we think is a straightforward defense of the rights of black and Latino young people” to seek admissions preferences from university officials—something now prohibited in Michigan unless Proposal 2 were repealed.

Mr. Washington’s group has not always seen eye-to-eye with mainstream civil-rights organizations. The American Civil Liberties Union and the NAACP Legal Defense and Educational Fund filed a separate challenge to Proposal 2, and on Tuesday the argument against the initiative will be divided between Mr. Washington and a veteran ACLU attorney, Mark Rosenbaum.

Seven states (California, Florida, Arizona, Washington, Nebraska, Oklahoma, and New Hampshire) have similar bans on affirmative action, so the justices’ decision could have implications for their own admissions practices. Justice Kagan recused herself, meaning that the decision will fall on the remaining eight justices and that Kennedy is probably the man to watch, via SCOTUSblog:

When the Justices convene on Tuesday for the oral argument, Justice Elena Kagan will not participate, presumably because she was involved in the case in some way when she served as the Solicitor General of the United States.  (She also did not participate in the Fisher case, for the same reason.)  Kagan’s recusal means that, if the Court were to divide four to four, the lower court’s decision would stand, although it wouldn’t apply to the rest of the country.  But the Court’s five most conservative Justices will cast votes in the case.  Because they have previously advocated for using race less in the government’s decisions, it is hard to see where the opponents can find enough votes in their favor.  And if the ban survives, more states could follow suit, rendering the Court’s discussion of when the Constitution permits universities to choose to use affirmative action moot in those states.


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It’s simple, really: Equality under the law.

Period.

Story.

End of.

Resist We Much on October 14, 2013 at 1:44 PM

“We don’t believe in the colorblind Constitution,” the coalition’s attorney, George B. Washington, said in an interview.

So you’re in favor of Jim Crow and oppose the Fourteenth Amendment?

rbj on October 14, 2013 at 1:47 PM

“We don’t believe in the colorblind Constitution”

And that, right there, is why racial tensions never go away.

nobar on October 14, 2013 at 1:50 PM

obama’s slave-owner family will disagree with you, RWM.

Schadenfreude on October 14, 2013 at 1:51 PM

Weird how these lefties just can never accept the “law of the land”…. Well when they don’t like it of course… If it suits their agenda suddenly they become strident defenders of “the Law”! Now if they don’t like it first they try the courts and if that doesn’t work they simply ignore what the courts say and do whatever they want anyway knowing full well Republicans will do nothing but shrug their shoulders and hide because the press might call them a bad name. Yah liberals and lefties really respect the law and Constitution alright

Caseoftheblues on October 14, 2013 at 1:52 PM

“We don’t believe in the colorblind Constitution,” the coalition’s attorney, George B. Washington, said in an interview.

Wow. They’re throwing it right out there. Since Obama’s election, the socialist/redistributionists have come out of the closet.

So much for the “Blind Justice” asperations in our constitutional republic.

WisRich on October 14, 2013 at 1:54 PM

In Michigan, the only thing we’re discriminating against is discrimination. Period

Don’t they realize that in itself is “discriminatory.”

I love how words like equality and discrimination are thrown around when really they have become subjective. You can only really “discriminate” against minority//, and equality is only for “select” groups.

melle1228 on October 14, 2013 at 1:54 PM

arguing that the measure forbids minorities from seeking admissions preferences but allows others, such as alumni/donors/athletes, to request favored treatment from state universities

Baloney. The measure does not forbid minorities from seeking admissions preferences; it only forbids minorities from seeking admissions preferences based on skin color or ethnicity.

Minorities can still seek admissions preferences based on socioeconomic status or other factors — they just can’t seek preferences based on skin color or ethnicity alone.

AZCoyote on October 14, 2013 at 1:55 PM

Think about the words “affirmative” and “action”. Look them up in a dictionary. What do they mean individually? What do they mean together? Do you have a clue as to how stupid our public debate has become when meaningless expressions like “affirmative action” drive public policy?

Ceteris Paribus on October 14, 2013 at 2:00 PM

Wow. They’re throwing it right out there. Since Obama’s election, the socialist/redistributionists have come out of the closet.

So much for the “Blind Justice” asperations in our constitutional republic.

WisRich on October 14, 2013 at 1:54 PM

There’s less and less reason for them to hide it anymore, with the government morphing into an imitation of Venezuela’s.

Doomberg on October 14, 2013 at 2:02 PM

arguing that the measure forbids minorities from seeking admissions preferences but allows others, such as alumni/donors/athletes, to request favored treatment from state universities

I think this is a valid argument. If they’re a public university (running partially on tax dollars), then the only discrimination going on should be based on academic qualifications. So, they shouldn’t allow racial discrimination, bit disallow the others.

Fenris on October 14, 2013 at 2:03 PM

#Itsthelaw

rogerb on October 14, 2013 at 2:04 PM

“We don’t believe in the colorblind Constitution,”

It’s rather clear you don’t believe in colorblind anything.

Dunedainn on October 14, 2013 at 2:06 PM

SCOTUS will probably kick it back down to a lower court.

jake-the-goose on October 14, 2013 at 2:07 PM

Affirmative action is court-sanctioned racism.
Period.

annoyinglittletwerp on October 14, 2013 at 2:11 PM

Stop giving races preferential treatment.

This applies to college admission, primary schools, criminal law and laws that provide punishments for bogus ‘hate-crime’ law that is intended to protect one race more than the other. It’s not legal, and is a violation of equal protection.

TX-96 on October 14, 2013 at 2:16 PM

the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary

That has to be the longest name to any organization in the history of names! Is that for real…

Yep. But they have an acronym for short, BAMN.

Maybe they could protest at

the Derek Zoolander Center For Kids Who Can’t Read Good And Wanna Learn To Do Other Stuff Good Too

Patriot Vet on October 14, 2013 at 2:21 PM

It is impossible to have affirmative action and equal opportunity at the same time.

RoadRunner on October 14, 2013 at 2:26 PM

It’s true that California has such a ban on its books. Unfortunately, the University of California system has been ignoring that ban ever since it passed. Now instead of granting preference to racial minorities, they grant preference to people who “surmount life challenges”. (Hint: people with white skin don’t face life challenges. Increasingly Asians don’t, either.)

Steven Den Beste on October 14, 2013 at 2:26 PM

Evidently “equality” only means “equality” when you get special treatment.

GarandFan on October 14, 2013 at 2:41 PM

While racial diversity remains a worthwhile aspiration for public universities

It is? How does an Asian sitting next to an Hispanic help either of them learn engineering calculus? Or anything else for that matter?

How is assumning that all Asians are alike and therefore equally representative of their similar DNA not intrinsically racist?

mankai on October 14, 2013 at 2:56 PM

NO DEBT IS OWED …..

I keep saying that, don’t I?

listens2glenn on October 14, 2013 at 3:05 PM

Why would Elena Kagan recuse herself from this case and NOT Obamacare where she had a clear conflict?

monalisa on October 14, 2013 at 3:48 PM

Why would Elena Kagan recuse herself from this case and NOT Obamacare where she had a clear conflict?

monalisa on October 14, 2013 at 3:48 PM

Because socialized healthcare has been a fifty-year priority for the progressive movement and she knew the vote would be close?

slickwillie2001 on October 14, 2013 at 4:00 PM

Because socialized healthcare has been a fifty-year priority for the progressive movement and she knew the vote would be close?

slickwillie2001 on October 14, 2013 at 4:00 PM

Exactly. So why not challenge it? The left does this all the time.

monalisa on October 14, 2013 at 4:12 PM

I heard their legal strategy is to pencil “but some men are created more equal than others” into the declaration of independence.

jhffmn on October 14, 2013 at 4:29 PM

Behold: The Mind Numbing Power of Pigment !

All Hail…………

dmann on October 14, 2013 at 4:34 PM

To the Left, the only cure for discrimination is MORE discrimination in the reverse direction!

Mahdi on October 14, 2013 at 4:39 PM

“We don’t believe in the colorblind Constitution.”

Translation: “We’re just not good enough to make it into these Institutions of Higher Learning on Our Own Merits.”

Sad, really.

Maddie on October 14, 2013 at 4:56 PM

To the Left, the only cure for discrimination is MORE discrimination in the reverse direction!

Mahdi on October 14, 2013 at 4:39 PM

…fifty years later.

slickwillie2001 on October 14, 2013 at 5:00 PM

Affirmative Action is so ingrained into the minds of so many that its become an entitlement that cannot be taken away.

Mahdi on October 14, 2013 at 6:06 PM

It’ll be interesting to see how the Chief Traitor John Benedict Roberts does the rewrite in this case.

RJL on October 14, 2013 at 6:46 PM

Affirmative Action is so ingrained into the minds of so many that its become an entitlement that cannot be taken away.

Mahdi on October 14, 2013 at 6:06 PM

That happens with charitable entitlements. It goes from “can you help me with my grocery bills this month” to “gimme my damn money, ride nah!”

That’s why there has to be a strict time limit on all of them.

slickwillie2001 on October 14, 2013 at 7:28 PM