Affirmative Action back in Supreme Court crosshairs

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Today, the conservative leaning Supreme Court will hear oral arguments in a new affirmative action case out of Michigan. Nearly a decade ago, a more balanced court ruled in Grutter v. Bollinger that racial preferences in law school admissions was permissible with the aim of fostering a diverse learning environment.

Affirmative action opponents, will argue in this new case, Schuette v. Coalition to Defend Affirmative Action, that a state’s electorate should be allowed to vote on measures which outlaw any affirmative action in college admissions.  Since there is a direct dispute on this legal question among the lower courts, the Supreme Court agreed to hear the case even before they ruled in Fisher v. University of Texas another controversial affirmative action case they decided earlier this year.

This current case is about whether Michigan’s “Proposal 2”, the state’s constitutional amendment outlawing affirmative action, is constitutional.  “Proposal 2” is an outright ban of preferences which use race, gender, color, ethnicity, or national origin in public employment and public contracting, as well as in public colleges.  “Proposal 2” was approved by Michigan voters in November 2006, 58 percent to 42 percent in favor of outlawing any preferences at all.  This complete ban on “preferential treatment” is being challenged by a group of individuals and civil rights groups who argue that banning affirmative action outright is harmful to people of color because it’s an anti-discrimination referendum that results in discrimination.

In this current case, the Supreme Court will determine whether “the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies.”  One of the key issues is the lack of lack of access the supporters of any program that uses racial preferences to go to college officials and try to get them to adopt these programs.  These affirmative action programs would be allowed under Supreme Court precedent, but not current Michigan law.

In an almost Orwellian way, the supporters of affirmative action need to make the argument that a proposition supported by voters that bans discrimination, is itself discriminatory.  But the real question for the public writ large should be, who benefits historically when there are no racial preferences at all or when there are calls to live in a “colorblind” society?

Affirmative action supporters argued that “Proposal 2” is a new form of “Jim Crow” writing in their brief, “The decision that emerges from the Court in this case will tell the people of America what the Court’s relationship is to America’s transformation into a majority-minority nation.”  It will be a message, the brief suggested, about whether the Court will allow Michigan to become “the model for how to create a new, constitutionally-ratified Jim Crow.”

Vince Warren the Executive Director, Center for Constitutional Rights, who worked on the 2003 Grutter case told theGrio, “What concerns me is that Chief Justice John Roberts has had his eye out to make affirmative action one of the signature issues of his tenure.  In the last term, the Court upheld the use of race but what concerns me here is that this issue is not about whether any particular use of race is constitutional or not. In this case, it’s about whether state citizens can ban the use of affirmative action outright.”

Warren says, “One can see a scenario where a court would strike down the referendum but send a signal to a state to think about affirmative action but only think about it in a different way [with a new type of anti-affirmative action proposal that will pass constitutional muster].  I don’t think there is a such a thing as an anti-affirmative action measure that would be good for people of color.  Any affirmative action ban, that says states cannot consider race in any context, by definition, the number of people of color will be depressed in every state institution of higher learning that is subject to that initiative.  That will have devastating effects on people of color.”

Follow Zerlina Maxwell on Twitter at @ZerlinaMaxwell.