The recent oral argument in Schuette v. Coalition to Defend Affirmative Action brought the Supreme Court one step closer to making an important decision on a Michigan case that involves the use of race-conscious policies in higher education. The case began in 2006, when the citizens of that state passed a ballot measure that, among other things, banned the use of race in the admissions process. Opponents of the ban argued that this violated their constitutional rights and sued the state.
Casual observers of the Court, who may recall that an affirmative action case was decided in the last term, might be asking themselves why the Justices are revisiting the use of race-conscious policies. Put simply, they are not. In that earlier case, Fisher v. University of Texas at Austin, the Court examined the question of whether the University of Texas’s race-conscious policies violated prior case law. The Court ultimately reaffirmed the university’s ability to use such policies to encourage diversity but found that a lower court failed in analyzing whether the university’s race-conscious policies met constitutional standards.
By contrast, Schuette is about whether it is constitutionally permissible to remove “the power of university officials to even consider using race as a factor in admissions.”
In other words, Fisher asks whether the University of Texas had a race-conscious program that was consistent with prior case law; Schuette asks whether race-conscious programs can be banned in a state by shifting the power from one group of people to another.
In making a decision, the Court will look closely at whether Michigan’s affirmative action ban, known as Proposal 2, ran afoul of the U.S. Constitution by taking the ability to make the decision from popularly elected state regents and placing it in the hands of the public. There is precedent in U.S. case law that bars governments and individuals from changing the political process to disadvantage a racial group, and opponents of the ban are arguing that this is exactly what happened in Michigan. Proposal 2 was only about race (not legacy admissions, for example). It took from the previously elected regents the power to make admission decisions and gave it to Michigan residents.
Regardless of the outcome of the case, we hope the Court’s decision will not have an impact on race-conscious policies in this country. It is clear that over the past several decades the Latino population has grown substantially and enrollment in higher education has also increased dramatically. For example, the last U.S. Census found that one in six Americans is Latino, and over the past decade Latinos accounted for more than half of the overall national growth rate. Further, a new report from Education Trust shows that between 2009 and 2011 enrollment in higher education among Latinos increased by 22 percent.
The confluence of a growing population and increasing enrollment in higher education means that even small changes in the law could translate into big changes for our community. The Court will likely render a decision in June, but for the latest updates and commentary, stay tuned to NCLR’s civil rights Twitter handle and NCLR’s home page.