On April 22, 2014, in Schuette v. Coalition to Defend Affirmative Action et al. (No. 12–682), the Supreme Court upheld a Michigan law that bans public colleges and universities, community colleges and school districts from offering preferential treatment to any individual based on their race, sex, color, ethnicity, or national origin in the context of public employment, public education or public contracting. A narrowly divided Sixth Circuit previously ruled that the law violated the equal protection clause by denying a fair political process to minorities. The Court, divided 6 to 2, with Justices Sotomayor and Ginsberg dissenting and Justice Kagan recusing herself, held that Michigan’s Proposal 2, subsequently enacted as Article I, §26, of the Michigan Constitution, did not violate the equal protection clause because it does not run the risk of causing specific injuries on account of race, as did laws struck down in Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), holdings that the Sixth Circuit relied upon in making its decision. The majority declined to comment on the effects of race-conscious policies, noting that the issue before it was not the constitutionality, or the merits, of race-conscious admissions policies in higher education but rather whether, and in what manner, state voters may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.
The impact of the Court’s decision remains to be seen. University of Michigan President Mary Sue Coleman and admissions director Ted Spencer have decried the affirmative action ban, saying outright that the school cannot achieve a fully diverse student body with it in place. Currently, African-American students comprise just 4.6 percent of undergraduates at the University of Michigan, compared to 8.9 percent in 1995 and 7 percent in 2006.
Ultimately, however, we expect that like other recent affirmative action cases, this case will have very little precedential value for colleges and universities for two reasons. First, the Court did not rule on the constitutionality of affirmative action, but rather whether a state could ban affirmative action. Second, like most recent affirmative action cases, this case was decided on the very specific circumstances involved with the Michigan initiative.
At the same time, the case does show this Court’s willingness to delve into affirmative action issues, particularly as they affect public education. More challenges to affirmative action policies can certainly be expected.