Can voters ban race-conscious admissions policies?

The Supreme Court is scheduled to hear oral arguments this fall in another case concerning race-conscious admissions policies. The new case, Schuette v. Coalition to Defend Affirmative Action (No. 12-682), will consider whether Michigan's 2006 voter referendum banning the use of race in admission policies unconstitutionally limits the rights of minority citizens. The nature of the challenge differs from the Fisher v. the University of Texas at Austin (No. 11-345) case, which the court ruled on in June, because it considers statewide policy determined by voters, rather than institutional level policy determined by administrators.

Voters in California, Arizona, Michigan, Nebraska, Oklahoma and Washington State have all passed referendums banning the consideration of race in higher education admissions policies since 1996. The challenge to Michigan's state constitution amendment comes from the Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary, also known as BAMN. The U.S. Court of Appeals for the Sixth Circuit sided with BAMN in two previous rulings, arguing that Michigan's ban violates the U.S. Constitution's equal protection clause by disadvantaging racial and ethnic minority groups in the political process. 

AACRAO advocates for schools

AACRAO and 48 other higher education organizations signed an amicus brief advocating for the Court to strike down the referendum. "Whether and how, within the bounds of the Equal Protection Clause, to pursue the educational benefits of a diverse student body are questions of academic policy and practice properly assigned to the judgment of colleges and universities," the brief reads. 

The petitioner in the case, Michigan Attorney General Bill Schuette, argues that the referendum cannot be considered unconstitutional because it prohibits preferential treatment based on race or sex. His brief also rejects the claim that the ban constitutes a form of political restructuring┬" that could be subject to scrutiny for limiting the rights of minority citizens. "[I[f the Sixth Circuit is right that a political-restructuring claim voids a provision that eliminates discrimination and preferences, it is difficult for any law to require equal treatment," the brief says. "That is because every state and federal law elevates decisions to a higher political level. For example, the federal Fair Housing Act would be suspect because it stops homebuyers from lobbying state officials for race- and sex-based preferences. That result cannot possibly be correct."

Other organizations opposed to race-conscious admissions policies have filed briefs in support of the petitioner. They consider the statewide bans to be race-neutral tools of democracy and well within state's rights.