State Bans on Affirmative Action

The Supreme Court and Affirmative Action

The Supreme Court first addressed affirmative action in the 1978 case of Bakke v. Regents of the University of California, which concerned the University of California Davis Medical School's use of quota systems for admissions. The Supreme Court held that the quota system, which allocated a specific number of seats for members of minority groups, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Lewis Powell wrote that all racial classifications -- beneficial and detrimental -- were suspect and subject to strict scrutiny. Justice Powell's decision stated that the state's interest in remedying past discrimination was insufficient to justify the program as there was no evidence of past discrimination. The majority held that the system was unconstitutional in denying admission, but Powell also joined the minority in refusing to enjoin the use of race in affirmative action cases in the future. Justice Powell would have found an affirmative action program salutary if it considered race a "plus" in an applicant's overall file but did not "insulate the individual from comparison with all other candidates for the available seats." Powell considered it important for an affirmative action scheme to be flexible in examining all elements of diversity. These themes would re-emerge 25 later in the University of Michigan cases and Justice Sandra Day O'Connor's opinion in Grutter v. Bollinger.

Grutter v. Bollinger, decided in 2003, brought the University of Michigan Law School's affirmative action policy up for the Court's review. University officials reviewed a range of factors, including race, in making admissions decisions, with the school citing an intent to remedy past discrimination in admissions. The opinion reiterated [PDF] Justice Powell's Bakke stance that "student body diversity is a compelling state interest that can justify the use of race in university admissions." The Court upheld the law school's admissions policy under strict scrutiny. The majority considered the policy to be narrowly tailored because race was among several factors considered in the admissions process.

Gratz v. Bollinger implicated the admissions policy of the University of Michigan's undergraduate college. The university's admission policy required that officers assign a score to applicants and to award additional points to minority applicants. The majority focused on the program's blind assigning of points to all minority applicants, distinct from Bakke's holistic, individualized approach. Even though there was a component of individual consideration involved, it was not featured enough to counter the 20-point assignment and withstand strict scrutiny.

In Fisher v. University of Texas at Austin, Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz challenged a university admissions policy that, similar to the policy challenged in Gratz and Grutter, used race as a factor in admissions decisions. The Court, in a 7-1 opinion, remanded the case to the lower court and ordered it to review the University's policy under strict scrutiny.

Schuette v. Coalition to Defend Affirmative Action

In 2006 following two high profile affirmative action US Supreme Court decisions dealing with affirmative action at the University of Michigan, a public institution, Michigan voters passed Proposal Two [PDF], a state constitutional ban on affirmative action in public employment, public education, and public contracting, with exceptions connected to federal law. The US Supreme Court ruled, in a 6-2 plurality decision, that this ban was not prohibited by the US Constitution, thus overturning a US Court of Appeals for the Sixth Circuit decision that found the ban in violation of the Fourteenth Amendment.

The day after the voters passed Proposal Two, on November 8, 2006, a case was filed in the US District Court for the Eastern District of Michigan against the Attorney General challenging the amendment as unconstitutional. The District Court granted summary judgment in the action to the defendant. The Sixth Circuit Court fully overturned that decision on November 15, 2012, ruling that the law violated the US Constitution. The US Supreme Court granted certiorari on March 25, 2013, and held oral arguments on October 15, 2013.

The plurality opinion of the US Supreme Court, released on April 22, 2014 and written by Justice Robert Kennedy, found that there was no constitutional requirement that the Michigan vote be set aside. Chief Justice John Roberts and Justice Samuel Alito joined the plurality. Justice Antonin Scalia wrote a concurrence in the judgment that was joined by Justice Clarence Thomas. Justice Stephen Breyer also wrote a concurrence. Justice Sonia Sotomayor wrote a dissent in which Justice Ruth Bader Ginsburg joined. Justice Sotomayor's dissent began by saying, "[w]e are fortunate to live in a democratic society," but warned, "without checks, democratically approved legislation can oppress minority groups." Justice Elena Kagan did not take part in the decision.

The Schuette in Schuette v. Coalition to Defend Affirmative Action is Bill Schuette, the Michigan Attorney General since 2011. Schuette was chosen as the original defendant in this case because it is his job to defend the laws of the state. The Coalition to Defend Affirmative Action, commonly referred to as BAMN ("By Any Means Necessary") is a non-profit advocacy group that was originally formed in 1995 to fight the ban on affirmative action by the Regents of the University of California System. BAMN was also involved in the earlier legal battles over affirmative action at the University of Michigan.

Current State Bans on Affirmative Action

Michigan is not the only US state to maintain some type of ban on race-conscious affirmative action policies. In 1996 California voters approved an amendment to the state's constitution that prohibited public institutions from using affirmative action policies. Under Proposition 209, state employment, contracting and educational institutions cannot base decisions on any of the enumerated categories found in the federal Civil Rights Act of 1964, such as race. This prohibition against affirmative action has faced unsuccessful challenges in the state legislature and in state and federal courts. The Supreme Court of California upheld the ban in August 2010, and California Governor Jerry Brown vetoed a bill in October 2011 that sought to allow the use of race as one of several demographic factors for consideration in the higher education admissions process. In April 2012 the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of a challenge to Proposition 209 and upheld the ban. Washington state's legislature passed a law similar to California's Proposition 209 governing affirmative action in that state.

Texas limited the use of demographic factors such as race in its higher education admissions policies by enacting the Top 10 Percent Plan in 1997. The plan calls for the automatic admission of students in the top ten percent of their graduating class to state universities, and allows admissions officers to consider "colorblind" factors when considering whether to admit those students not in the top ten percent. The Top 10 Percent Plan played a pivotal role in the recent Fisher v. University of Texas opinion (will change this sentence based upon Mike's section). Florida Governor Jeb Bush laid the groundwork for a similar plan in Florida by issuing Executive Order 99-281 [PDF] in 1999, which prohibits the use of affirmative action by Florida's state institutions. Florida's Talented Twenty [PDF] program admits the top twenty percent of the high school class, and denies the use of race as an admissions factor for other students.

The latest round of affirmative action bans mimic the California model. Nebraska voters banned affirmative action in November 2008, by prohibiting discrimination and preferential treatment on the basis of race and sex. Arizona amended its state constitution in November 2010 to likewise prohibit affirmative action. New Hampshire's legislature passed a law prohibiting the use of affirmative action in higher education in January 2012. Oklahoma voters passed a constitutional amendment in 2012, in part because they believed affirmative action programs were no longer necessary. It remains to be seen whether the Schuette opinion will encourage other states to pass affirmative action bans.


04/22/2014: Supreme Court upheld Michigan affirmative action ban.

06/24/2013: Supreme Court sent Texas affirmative action case back to lower court.

11/06/2012: Oklahoma voters approved affirmative action ban.

04/02/2012: Ninth Circuit upheld California affirmative action ban.

11/02/2010: Arizona voters approved amendment banning affirmative action.

11/02/2010: Arizona voters approved amendment banning affirmative action.

08/02/2010: California high court ruled affirmative action ban constitutional.

08/02/2010: California high court ruled affirmative action ban constitutional.

11/05/2008: Affirmative action ban passed in Nebraska.

11/06/2006: Michigan voters approved affirmative action restriction.


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