On April 22, 2014, the Supreme Court of the United States held that although consideration of race in admissions is constitutionally permissible, voters have every right to reject it. The case, Schuette v. Coalition to Defend Affirmative Action, began as an opportunity to reconsider race-conscious admissions at Michigan’s public colleges and universities. It ended as a celebration of the First Amendment, the democratic process, and states’ rights.
Schuette involved Michigan’s adoption of a ballot initiative, Proposal 2, prohibiting discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. Proposal 2 amended Michigan’s Constitution to prohibit the state, all public colleges, universities, community colleges, and school districts, any city, county, or other political subdivision, and any other governmental instrumentality from,
. . . discriminat[ing] against, or grant[ing] 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.
The initiative passed on November 7, 2006, and the following day, a coalition of individuals and interest groups filed suit in federal district court challenging its provisions as they applied to public colleges and universities. The named defendants in the suit included the state governor, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General intervened and moved for summary judgment, which the district court granted. On appeal, the Sixth Circuit Court of Appeals reversed, concluding that the provisions of Proposal 2 affecting public higher education impermissibly altered the political process in violation of the Equal Protection Clause.
The Court’s Decision
Michigan appealed and, in a 6-2 decision, the Supreme Court reversed, finding in favor of Michigan. Although the Supreme Court’s opinion only addresses Proposal 2 as it applies to college or university admissions—and primarily as it applies to race—it also banned preferential treatment based on sex, color, ethnicity, and national origin.
The Court started by saying the case was “not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” but whether voters have a right to reject government-funded, racial preferences. Because this was not a challenge to race-conscious admissions, the majority reasoned, the Equal Protection Clause and two previous Supreme Court decisions, Gratz v. Bollinger and Fisher v. University of Texas at Austin, were not at issue. Instead, the Court focused on the extent to which citizens have the right to “speak, debate and then, as a matter of political will . . . act through a lawful electoral process.” The Court concluded that Michigan voters had simply exercised their privilege to enact laws as a basic exercise of their democratic power. In reaching the decision, the Court drew a line between what is constitutionally required and what is constitutionally permissible: preferences may be permissible, but the electorate is empowered by the First Amendment to vote them down.
Despite acknowledging that a state cannot alter government procedures in a way that targets racial minorities, the Court did not find that Proposal 2 encouraged discrimination or placed a special burden on racial minorities or other protected classes. The Court rejected arguments that Proposal 2 violated the Equal Protection Clause by altering the political process or, despite being facially neutral, denied equal protection because it had a racially disparate impact. Proposal 2, the majority opinion stated, expressly required the state to afford all persons equal protection of the laws. Therefore, it could not possibly deny equal protection of the laws to any person.
Now that the Supreme Court has agreed that Michigan’s ban is not unconstitutional, what will the impact of the decision be?
Currently, the decision only affects the eight states that have their own bans in place: Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington. More may follow, but for the time being, 42 of 50 states, and their colleges and universities, are unaffected.
For those states that do have bans, based on past history, public college and university admissions, financial aid, and other education programs will be affected. It is too late in the academic year for fall 2014 admissions to be impacted, but look for decreased diversity in admissions, enrollment, and—due to financial aid—retention and matriculation in the future.
For states without bans, race, ethnicity, and national origin can still be “plus” factors when making admissions and financial aid decisions. To consider these “plus” factors, (1) the institution’s goals must include having a diverse educational environment, (2) it must be able to show that diversity is essential to its educational mission, and (3) it must be able to demonstrate that it cannot achieve the desired level of diversity using race-neutral means. The institution must also utilize a highly-individualized, holistic review of the applicant’s file that considers all ways an applicant might contribute to a diverse educational environment, but does not make race or ethnicity the defining feature of the application.
Restrictions on criteria that universities use to promote student diversity, may lead to less diversity among college and university student populations. Less diversity might, in turn, result in less diversity in certain professions and industries. There is a consensus among the nation’s largest employers that a diverse workforce makes good business sense. States whose voters adopt laws that run counter to diversity may find themselves unable to attract new employers and missing out on job creation opportunities.
In addition to the above-noted effects of the Schuette decision, employers should note that Proposal 2 includes two exceptions:
It does not prohibit action that must be taken to establish or maintain eligibility for any federal program if ineligibility would result in a loss of federal funds.
It does not prohibit the use of bona fide qualifications based on sex that are reasonably necessary to public employment, public education, or public contracting.
As to the first, this means state action taken to comply with Title VI of the Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal funds) and Title IX of the Education Amendments of 1972 (which prohibits discrimination based on sex in education programs and activities receiving federal financial assistance) is exempted from Proposal 2. These programs and activities include, but are not limited to admissions, recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, housing, and employment. Opponents of Title VI and Title IX cannot argue, even by implication, that the Supreme Court has altered past precedent as to either statute.
As to the second, both Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967 (ADEA) contain a bona fide occupational qualification (BFOQ) defense. Proposal 2 leaves both intact. Title VII’s BFOQ provision reads:
[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
The ADEA’s BFOQ provision reads:
It shall not be unlawful for an employer, employment agency, or labor organization (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located.
While race can never be a BFOQ, in the employment context, public (and private) employers can maintain the status quo as to these two defenses.
To paraphrase J. Richard Carrigan following the Supreme Court’s release of its opinion in Fisher, Grutter survives—for now. Proponents of race-conscious admissions can breathe a sigh of relief that Grutter remains intact, but opponents have been provided with a road map for defeating it on a state-by-state basis.