October 21, 2013

Judicial Benchmarks: Ending Discrimination

Supreme Court to consider another affirmative action case.

The Equal Protection Clause of the Fourteenth Amendment provides “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” Nothing has been more of a muddle in the courtrooms than weak-kneed jurists’ attempts to reconcile this clear language with the fundamentally discriminatory nature of “affirmative action.” The most recent groundbreaking cases have had to do with public universities.

In the 1978 case of Regents of the University of California v. Bakke, the Supreme Court held that racial quotas are unconstitutional but that educational institutions could legally use race as one of many factors to consider in their admissions process. However, the Supremes muddied the water in the companion cases of Grutter v. Bollinger and Gratz v. Bollinger. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School. Nevertheless, in Grutter, it allowed schools to consider race as a factor in admissions for the purpose of diversity. But in Gratz, the Court invalidated Michigan’s undergraduate admissions policy on the grounds that the undergraduate policy used a point system that was excessively mechanistic. Got that?

Fed up with convoluted rationalizing, 58% of Michigan voters supported a definitive policy by supporting Proposition 2, amending the state constitution to prohibit discrimination by race in education, government contracts or hiring. That amendment has been challenged in Schuette v. Coalition to Defend Affirmative Action now before the Supreme Court. At issue is a question both bizarre and laughable: Does it violate the U.S. Constitution’s ban on racial discrimination for a state to ban racial discrimination?

The plaintiff, the Coalition for Affirmative Action, believes it does, arguing that Prop 2 disproportionately burdens minorities in education. The Sixth Circuit Court of Appeals agreed, in an 8-7 en banc decision, that Proposition 2 “placed special burdens on the ability of minority groups to achieve beneficial legislation.” Dissenting Judge Julia Smith Gibbons wrote that this logic contradicts “elementary principles of constitutional law” and that under the ruling “for the first time, the presumptively invalid policy of racial and gender preference has been judicially entrenched as beyond the political process.” Well said.

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