EdLawConnect Blog

Legal challenges of affirmative action, and of affirmative action bans, in public higher education continue to occupy the courts.  In 2012, the federal courts gave conflicting rulings on the constitutionality of affirmative action bans enacted by California and Michigan, and the Supreme Court has been asked to give the final say.

Proposition 209, approved by California voters November 1996, added Article 1, Section 31 to the California Constitution, providing, “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  A stated intention of supporters of the ballot measure was to end affirmative action programs by California state and local governments, and the law had its intended effect.  California courts struck down race- and gender-based affirmative action programs on the basis of Proposition 209, and California’s public colleges and universities ended affirmative action programs in admissions and hiring.

Proposition 209 was challenged in the courts as being inconsistent with the federal constitution’s guarantee of equal protection of the law for all persons.  Challengers argued that Proposition 209, while purporting to require state government to be neutral with respect to race and gender, was in reality discriminatory, because it uniquely burdened the ability of minority groups to use the political process to achieve legislation that is beneficial to them.  In other words, according to this “political structure” argument, while many groups in society remained free to seek passage of legislation to advance their interests, racial and ethnic minorities and women were specifically precluded from doing so by Proposition 209, and Proposition 209 therefore violated the federal constitution by creating an un-level political playing field for these groups.

These challenges were brought in the context of higher education affirmative action programs.  Opponents of Proposition 209 pointed to the fact that following the law’s passage, the number of African American, Latino, and Native American freshmen at Berkeley and UCLA dropped precipitously.  These challenges, however, were unsuccessful.  The federal Ninth Circuit Court of Appeals held in 1997 and again in 2012 that Proposition 209 did not violate the equal protection clause of the federal constitution.  Coalition for Economic Equity v. Wilson, 122  F.3d 692 (9^th Cir. 1997); Coalition to Defend Affirmative Action v. Brown, 674 F.2d 1128 (9^th Cir. 2012).

Like other political movements before and since, the success of Proposition 209 in California led to similar measures in other states.  One such state was Michigan.  In November, 2006, Michigan voters approved Proposal 2, which amended the Michigan Constitution in terms virtually identical to California’s Proposition 209.  As in California, Proposal 2 led to the termination of race- and gender-based affirmative action programs in Michigan’s public colleges and universities.  As in California, Proposal 2 was challenged in the court as violating federal equal protection requirements.

Unlike in California, however, the legal challenges to Michigan’s Proposal 2 were successful.  In November, 2012, the federal Sixth Circuit Court of Appeals struck down Proposal 2 on the basis that the law required racial minorities to overcome higher obstacles than those faced by other groups to achieve the political objective of promoting affirmative action.  The court compared the situation of alumni of a public university, who are able to seek policies granting preference for admission of family members in any number of ways, to that of racial minorities, whose only means of securing affirmative action programs is to amend the Michigan Constitution.  Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 701 F.3d 466 (6^th Cir. 2012).

A petition for review of the Michigan case has been filed with the United States Supreme Court, and is now pending.  The Supreme Court may or may not take the case, but a common reason the Supreme Court does review decisions of the lower courts is to resolve conflicting rulings by different federal appellate courts.  Given that the Ninth and Sixth Circuits reached directly opposite conclusions about the constitutionality of virtually identical state laws, the Supreme Court may decide to intervene to give the final say.

The Supreme Court has already heard another case involving affirmative action in higher education this term, Fisher v. University of Texas.  In that case, a white applicant denied admission to the University of Texas is challenging its affirmative action policies.  The Supreme Court heard arguments in the case in October, 2012, and a ruling is pending.