Yesterday, the Supreme Court agreed to intervene in Schuette v. Coalition to Defend Affirmative Action at the request of the State of Michigan. The case concerns Section 26 of the Michigan Civil Rights Initiative, a successful 2006 referendum (which was adopted by a 16-point margin) that amended the state’s constitution to prohibit discrimination or the use of preferential treatment in college admissions and public hiring.
Unlike the still undecided Supreme Court case Fisher v. University of Texas, in which the Court will decide whether racial or sex-based preferences in college admissions are permitted by the Equal Protection Clause, Schuette drives the affirmative action debate into the realm of the absurd. While the entirety of Supreme Court jurisprudence on racial preferences establishes that they are only barely or rarely constitutional, the Sixth 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 Sixth Circuit Court of Appeals bizarrely concluded that the Amendment can actually require discrimination on the basis of race, sex, color, and ethnicity.
In a dissenting opinion, 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.”
The Ninth 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 Sixth Circuit ruling. It’s not a good sign for Schuette when even the Ninth Circuit thinks the decision goes too far.
Like the gay marriage cases being heard by the Justices this week, Schuette also implicates our nation’s system of federalism and the notion of checks-and-balances.
Since 1997, voters in seven states, including Michigan, have passed referendums prohibiting the use of racial preferences by state universities or governments. If the Sixth Circuit gets its way, eight unelected federal judges will have reinstated an unpopular state policy against the will of millions of Americans. “Democracy, it turns out, has nothing to do with it,” quipped Judge Sutton in his occasionally sarcastic dissent.
As a final recourse in case of judicial defeat (which is unlikely), the citizens of Michigan could always start a movement to amend the U.S. Constitution to say, “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Oh wait, it already says that.