In the latest contribution to our affirmative action themed series of post, Karl Laird looks at a recent decision of the US Court of Appeals for the Sixth Circuit that may be indicative of how the cards could fall in Fisher v Texas, currently reserved by the US Supreme Court. 

In Coalition To Defend Affirmative Action v Regents of the University of Michigan an extremely divided Court of Appeals for the Sixth Circuit in an 8 to 7 decision invalidated an amendment to the Constitution of Michigan that prohibited any use of race, sex, colour, ethnicity, or national origin in the admissions policies of that state’s public universities and colleges on the basis that it was contrary to the Fourteenth Amendment.

Reacting to the Supreme Court’s 2003 decisions upholding the constitutionality of affirmative action measures in college admissions policies, voters in Michigan amended their state’s constitution in 2006 to ban such policies by a margin of 58% to 42%.  The question for the court was whether the amendment violated the guarantee of equal protection by removing the power of university officials to even consider using race as a factor in the admissions process, something they were specifically entitled to do.

Writing for the majority, Cole J. held that the amendment violated the Equal Protection Clause of the Fourteenth Amendment as it impermissibly restructured the political process along racial lines.  In an earlier case, the Supreme Court held that the Equal Protection Clause does not simply require the political process to treat all persons equally, but also prohibits the state from subtly distorting governmental processes in such a way as to place special burdens upon the ability of minority groups to achieve the enactment of beneficial legislation.  The Court noted that it is axiomatic that the Constitution does not protect minorities from political defeat, but what it does protect minorities from is a majority that has won but then seeks to rig the political process to perpetuate its success indefinitely.  The Court held that an enactment will only deprive a minority group of the equal protection of the laws when it:

1. has a racial focus, that targets a policy or programme that inures primarily to the benefit of the minority; and
2. it reallocates governmental power or reorders the political decision making process in such a way that places special burdens on a minority group’s ability to achieve its goals through that process.

Cole J found that both these factors were present in the case at hand and contrasted two situations to demonstrate why.  A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution.  In contrast, the same could no longer be said for a black student seeking the adoption of a constitutionally permissible race conscious admissions policy.  The only option open to the black student would be to seek to have Michigan’s Constitution amended in order to reverse the prohibition on taking race into account in college admissions.  It is the discrepancy that exists between these two situations that violates the Fourteenth Amendment.  The dissenting judges disagreed with the majority’s application of the ‘political process’ test and a number seem to use the case in order to question the constitutionality of affirmative action itself.

The Attorney General of Michigan has petitioned the Supreme Court for a writ of certiorari.  It seems likely that the Court will agree to hear the case as the decision conflicts directly with various rulings upholding California’s affirmative action ban both by the Court of Appeals for the Ninth Circuit and the Supreme Court of California.  An attempt by the AG to have the case fast tracked has failed and as such a decision as to whether it will be heard is not due until after February 2013.  Does the decision by the Court not to fast track the case give an indication as to how Fisher v Texas may be decided?  We will have to wait and see.

Karl is a Lecturer in Law at Pembroke College, Oxford and a regular contributor to the OxHRH Blog.