A challenge to Michigan’s state constitutional amendment prohibiting the use of race in college admissions and public hiring will appear before the nation’s highest court Tuesday — but skeptics of a lower court’s ruling are charging that it’s taken some contorted logic to get here.
Schuette v. Coalition to Defend Affirmative Action will consider a November 2012 decision from the 6th U.S. Circuit Court of Appeals that ruled the amendment to be in violation of the U.S. Constitution. The court’s majority argued that the amendment — which was approved by a 16-point margin in a 2006 public referendum — unfairly stacks the political process against minority college applicants and “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”
Red Alert Politics’ Mike Wakefield wrote in a spring preview of the Schuette case that the effect of such a ruling was silly.
… While the entirety of Supreme Court jurisprudence on racial preferences establishes that they are only barely or rarely constitutional, the [6th] Circuit concluded that racial preferences are in fact mandatory.
Nearly 150 years after the Fourteenth Amendment was adopted to require equal treatment of citizens under the law, the [6th Circuit] bizarrely concluded that the Amendment can actually require discrimination on the basis of race, sex, color, and ethnicity.
In a dissenting opinion, [U.S. Circuit] Judge Jeffrey Sutton bluntly explained that “a State that wishes to treat citizens of all races and nationalities equally ‘is free as a matter of its own law’ to do so.” Seemingly stating the obvious, he continued, “A State does not deny equal treatment by mandating it.”
Michigan Attorney General Bill Schuette, a Republican and the named petitioner in the case, agreed that Michigan voters simply decided against affirmative action as a policy.
“It’s fundamentally wrong to treat people differently on the color of their skin,” Schuette said.
The Washington Post’s Robert Barnes framed the 6th Circuit’s opposition to the Michigan amendment as having less to do with a policy choice as it does with shutting minorities out of the lawmaking process.
[T]he slim 6th Circuit majority said there is a difference between not using affirmative action and banning it in the state constitution. The latter violates the principle that minorities must be allowed to fully participate in creating laws and that “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them,” Circuit Judge R. Guy Cole Jr. wrote.
His comparison was that while residents of Michigan’s Upper Peninsula may lobby decision makers to grant preferences to their underrepresented students, minority groups would have to change the constitution before even having a chance to advocate racial considerations.
As Mike wrote in March, the prospects for 6th Circuit’s decision may be in doubt.
“The [9th] Circuit, widely considered the most liberal in the nation, as well as the most frequently overturned, upheld California’s ban on affirmative action in a similar case just a few months before the [6th] Circuit ruling,” he wrote. “It’s not a good sign for Schuette when even the [9th] Circuit thinks the decision goes too far.
