London, 9 May 2014
On 22 April 2014, the US Supreme Court in Schuette, Attorney General of Michigan v Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (Bamn) et al, held that an amendment to the Michigan State Constitution which prohibited affirmative action policies that favour people from a minority background was constitutional. The Court, by a six to two majority, held that state voters could choose to prohibit the consideration of race in university admissions policies, amongst other things, without contravening the Equal Protection Clause of the Constitution.
The case arose against a backdrop of numerous challenges to the constitutionality of affirmative action measures. Following several cases in which universities’ race-conscious admissions policies were considered by the US courts, a large debate on the issue opened up in Michigan. In 2006, Michigan voters adopted an amendment to their State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Section 26 of the amendment prohibited the granting of preferential treatment to “any individual or group on the basis of race, sex, colour, ethnicity, or national origin in the operation of public employment, public education, or public contracting”. This provision was challenged by a number of plaintiffs including students, faculty and prospective applicants to Michigan public universities who argued that the ban was unconstitutional.
In making its finding, the Court noted that it was not being asked to consider whether race-conscious admissions policies were permitted under the constitution, a matter which it stated had been explored in its recent judgment in Fisher v University of Texas. Instead the Court in this case was ruling on whether voters could enact a prohibition on affirmative action measures at the state level. In finding that they could, the Court held that the Equal Protection Clause of the US Constitution permitted affirmative action of the type at issue in the case, but did not require it.
In their strong dissent, Justice Sotomayor and Justice Ginsburg stated that, while they fully respected the principle of democracy, without checks the democratic process may oppress minority groups. In their view it was for this reason that the Constitution limits the extent to which the majority will can be realised. One of these limits is ensuring equal protection of the law.
Dimitrina Petrova, Executive Director of The Equal Rights Trust, commented:
“This judgment is profoundly regressive in a number of ways. First, it reduces democracy to majority rule, allowing the majority to discriminate against a disadvantaged minority. Second, it reduces equal protection to formal equality and identical treatment, thus turning the clock back by decades in our understanding of equality. Third, it reduces fundamental human rights, of which equality is one, to ordinary legal rights that can be deleted at will through a legislative process, thus negating the primacy of human rights over positive law. One can hardly imagine a more reactionary judgment, undermining decades, if not centuries of evolution, toward greater humanity.”
ERT also notes the increased regularity with which race-conscious university admissions policies are being challenged before the US courts.
On 19 June, at an ERT panel discussion in London entitled “Does Affirmative Action Create Unfair Disadvantage?” Professor Theodore Shaw will discuss these cases and their implications.
To register for the free panel discussion click here.
To read ERT’s case summary click here.
To read the US Supreme Court’s judgment click here.
