What’s On Deck: Court to Again Tackle Affirmative Action


As the justices continue their summer vacation, we will be previewing what’s to come when they return to the bench in October.

One of the first cases on deck involves affirmative action, which came before the Court last term in Fisher v. Texas. The Court surprised many by holding that the narrowly tailored use of race in admissions decisions did not violate the Equal Protection Clause.

Schuette v. Coalition to Defend Affirmative Action offers a very different spin on affirmative action. It involves an amendment to the Michigan state constitution banning racial preferences in public education, employment, or contracting. While Proposal 2 was approved by 58 percent of the state’s voters, it quickly met legal challenges by supporters of affirmative action.

The specific question before the Court is whether the amendment violates the Equal Protection Clause. The United State Court of Appeals for the Sixth Circuit previously ruled that it did, basing its decision on the political process doctrine. It holds that a law violates the Equal Protection Clause if it “(1) has a racial focus, targeting a policy or program that ‘inures primarily to the benefit of the minority’; and (2) reallocates political power or reorders the decision-making process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.”

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