Those competing arguments await justices in the case of Schuette v. Coalition to Defend Affirmative Action, the court’s second look at affirmative action in higher education in a year. It concerns an amendment to the Michigan constitution passed by 58 percent of the state’s voters in 2006.
The case raises an intriguing third question as well, one that is not a part of the official proceedings: Do the arguments above expose an ideological difference between judges chosen by Democratic presidents and those nominated by Republicans?
That was what happened when the full U.S. Court of Appeals for the 6th Circuit in Cincinnati considered the Michigan amendment. Eight judges chosen by Democratic presidents said the amendment restructured the political process in a way that singled out minorities for harm and struck it down.
Seven judges nominated by Republicans said it was ridiculous to believe a mandate for colorblind treatment of college applicants offended the 14th Amendment’s guarantee of equal protection.
The relevant part of the amendment being addressed by the Supreme Court says the state’s public colleges and universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”
The initiative that amended the state constitution was “democracy in action,” says Michigan’s Attorney General Bill Schuette, a Republican. (The case that bears his name is often mispronounced; during political campaigns, Schuette has reminded voters that it’s like “shoe + T,” and now his Twitter handle is @SchuetteOnDuty.)
“It’s fundamentally wrong to treat people differently on the color of their skin,” Schuette says.
While the Supreme Court, in another case from Michigan — Grutter v. Bollinger — said that race may be considered as part of an “individualized, holistic review of each applicant’s file,” everyone agrees the court didn’t mandate it, Schuette argues.
Michigan voters were thus simply making a policy decision that affirmative action was not for them, as has California and a handful of other states, Schuette says.
But the slim 6th Circuit majority said there is a difference between not using affirmative action and banning it in the state constitution. The latter violates the principle that minorities must be allowed to fully participate in creating laws and that “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them,” Circuit Judge R. Guy Cole Jr. wrote.
His comparison was that while residents of Michigan’s Upper Peninsula may lobby decision makers to grant preferences to their underrepresented students, minority groups would have to change the constitution before even having a chance to advocate racial considerations.