The Supreme Court will be handing down another major affirmative action decision: yesterday the Court announced that it had granted certiorari in Schuette v. Coalition to Defend Affirmative Action.
That’s the official title of the case which arose from Proposition 2, a ballot intiative in which a thumping 58% of Michigan's voters approved an amendment to their state’s constitution banning the use of racial preferences in admissions to the state’s public colleges and universities. In plain English, the state was now prohibited from using any form of racial classification in considering applicants to its public institutions. That is racial discrimination, inconsistent with the equal protection clause of the 14th amendment to the US Constitution. NAS, of course, along with our Michigan affiliate, actively supported Proposition 2, consistent with our unchanging opposition to group preferences of any kind.
The Sixth Circuit Court of Appeals read the US Constitution with strangely tinted lenses, however, and promptly overturned the initiative: the 14th Amendment, you see, actually does not allow anyone to ban racial discrimination in this manner. Yes that’s what the 8-7 majority ruled – the Constitution, in the name of fair and equal treatment, does not permit the prohibition of racial discrimination. Really. See comments here, here and here for some insightful analysis of this extraordinary verdict.
This news comes as the Court is already hearing arguments in Fisher v. Texas, another major case involving the use of racial preferences at the University of Texas, Austin.
The outcomes of these cases are anyone’s guess, and the Supreme Court has often defied the expectations of the best informed legal prognostications. It seems safe to venture that the justices will divide closely, and could split 4-4 because of Justice Elena Kagan’s recusal from both cases.
Our hope of course, is for a straight reading of the 14th Amendment that simply prohibits the use of racial quotas, which the Court has thus far not been willing to do. But the die has now been cast, so we’re about to find out.