More than another affirmative action case: Laws that suppress racial minority voices
Jeffrey C. Sun
University of North Dakota
On March 25, 2013, the U.S. Supreme Court announced that in its new term beginning in October 2013, it would review another affirmative action case, Schuette v. Michigan Coalition to Defend Affirmative Action (BAMN).1 The plaintiffs in this case are a group of faculty members, prospective students, and then current students at the University of Michigan along with a group known as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). The organization leading the suit is often referred to as BAMN, which is an acronym constructed from the last four letters of the organization’s name. Could it be true? Two affirmative action cases within two years? Just last year, Neal Hutchens (2012) wrote in Developments about a then-upcoming case, Fisher v. University of Texas. In October 2012, the Supreme Court heard oral arguments for the Fisher case, which questions the use of race in college admissions for applicants who are not admitted based on their standing in the top 10% of their high school class. However, the Fisher case and those that preceded it faced a different line of legal analysis than what the upcoming BAMN case presents.
Previous Affirmative Action Cases
To recap from Hutchens’ (2012) article, several U.S. Supreme Court cases precede Fisher. In Regents of the University of California v. Bakke (1978), the Court provided three key legal lessons for higher education administrators. First, an admissions practice that uses a separate evaluation system (e.g., a separate evaluation committee and criteria) for minority applicants is impermissible. Second, a quota system based on race (i.e., a predetermined number of slots for racial minorities) is impermissible. Third, individualized applicant reviews, which are not based on a predetermined number of slots, may use race among one of many factors such as plus-point for racial minorities.
Then in 2003, the Court made clear from both Gratz v. Bollinger and Grutter v. Bollinger that race may be factored into admissions decisions with some limitations. According to Gratz (2003), we learned that awarding points for race is not acceptable when such a point system essentially places race as the decisive factor, not one of many factors of an overall applicant’s review. Grutter (2003) clarified the parameters further, stating: “Universities can, however, consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant” (p. 334). In that case, the school’s use of race as a plus factor was part of an evaluation system that reviewed applications in a highly individualized, holistic process, so the use of race was clearly not a decisive factor. Stated another way, the Grutter case also informed higher education administrators that diversity may serve as a compelling interest. The opinion indicated that courts should defer to the University’s educational judgment as to whether diversity “is essential to its educational mission” (Grutter, 2003, p. 328). Thus, educational institutions have some levels of professional decision-making. Finally, Gratz emphasized that these policies emerge under protections from the 14th Amendment, which applies to public colleges,2 and from Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race in educational programs or activities that receive federal financial assistance. Title VI applies to public and private colleges that receive federal financial assistance – which includes all public colleges and nearly all private colleges. Thus, these decisions are quite important to everyone in higher education.
The New Case
Before and after Gratz and Grutter, selected states started to pass bans prohibiting the use of race as a criterion for admission into public colleges. In November 2006, the state of Michigan joined three other states in passing a legal ban on race conscious admissions policies. In Michigan, the electorate voted through a state referendum, which is often referred to as Proposal 2, to ban race conscious admissions policies. Proposal 2 actually blocks the use of race and other factors in state operations, but the critical application here is the use of race for college admissions. In this case, the BAMN group got together and filed suit to contest the constitutionality of this state law. The defendants include the University of Michigan, Michigan State University, Wayne State University, and the State of Michigan.3
In 2008, a district court judge ruled on several motions about the case (BAMN, 2008). At that time, the judge ruled in favor of the State of Michigan finding no Equal Protection violation from Proposal 2. The plaintiffs appealed. In 2011, the Sixth Circuit for the U.S. Court of Appeals reversed the district court’s decision. That appellate panel ruled 2-1 that Proposal 2 provisions pertaining to higher education impermissibly alter the political process for racial minorities, thus making it illegal under the Equal Protection Clause (BAMN, 2011). Later, the whole Sixth Circuit panel decided to hear the case. In an 8-7 decision, the court upheld the ruling that Proposal 2 is unconstitutional. These decisions are held without any action until the Supreme Court decides the case.
In analyzing the BAMN case, the appellate courts referred to the political restructuring doctrine, which addresses the non-neutral allocation of power that places special burdens on racial minorities within the governmental process. To determine if the policy violates the Equal Protection Clause of the 14th Amendment, the court applied the political restructuring framework asking: (1) does the law have a racial focus targeting a policy of program that primarily benefits minorities, and (2) does the law reallocate political power or reorder the decision-making process in such a way that it places special burdens on minority groups to achieve their policy interests?
For the first prong, the court recognized that Proposal 2 has a racial focus in targeting the elimination of race conscious policies. For the second prong, the court examined two sub-parts: the political power and the special burdens on minorities. The court established that relevant admissions procedures are part of the political process. Noting the state of Michigan’s procedures for changing the admissions policies, the court observed that Michigan has elected governing boards, who set admissions policies. While responsibilities for day-to-day activities reside with campus administrators, the board exercises ultimate authority over admissions policies “making the policies themselves part of the political process” (BAMN, 2012, p. 482). As a noteworthy distinction, the court indicated that if the board did not have power and the control rested with the “politically unaccountable faculty members or admissions committees,” then the law would have had little impact on the political process and not met the second prong (BAMN, 2012, p. 480). Since the board had the authority and the law reordered the decision-making process, the court next conducted a comparative structural burden analysis. That is, it compared the political channels required to seek an admissions policy change. Table 1 displays the court’s tracing of the steps for a non-race admissions policy change and a race conscious admissions policy change.
Table 1: Comparing the Political Process
|Non-Race Admissions Policy Change||Race Conscious Admission Policy Change|
|[A] citizen interested in admissions policies benefitting legacy applicants—sons and daughters of alumni of the university—may lobby the admissions committees directly, through written or in-person communication. He may petition higher administrative authorities at the university, such as the dean of admissions, the president of the university, or the university’s board. He may seek to affect the election—through voting, campaigning, or other means—of any one of the eight board members whom the individual believes will champion his cause and revise admissions policies accordingly. And he may campaign for an amendment to the Michigan Constitution (BAMN, 2012, p. 484).||[T]he campaign for a constitutional amendment—is the sole recourse available to a Michigan citizen who supports enacting such policies. That citizen must now begin by convincing the Michigan electorate to amend its constitution—an extraordinarily expensive process and the most arduous of all the possible channels for change. Just to place a proposed constitutional amendment repealing Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate…or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election. Once on the ballot, the proposed amendment must then earn the support of a majority of the voting electorate to undo Proposal 2’s categorical ban. After this successful constitutional amendment campaign, the citizen could finally approach the university—by petitioning the admissions committees or higher administrative authorities—to request the adoption of race-conscious admissions policies. By amending the Michigan Constitution to prohibit university admissions units from using even modest race-conscious admissions policies, Proposal 2 thus removed the authority to institute any such policy from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution (BAMN, 2012, p. 484).|
Based on the analysis, which I placed in Table 1, the court concluded that racial minority students face the highest possible barrier to enact change compared to other non-race policies. In light of the review of the Michigan’s Proposal 2 to the two-prong test, the court ruled in favor of BAMN. The State Attorney General Bill Schuette filed an appeal to the U.S. Supreme Court and on March 25, 2013 the Court granted a hearing.
Not Just Another Affirmative Action Case
Following the March 25, 2013 announcement of the Supreme Court’s upcoming review of BAMN, I heard and received emails from colleagues across the nation referencing this case as “another affirmative action case” on college admissions. I suppose that it may seem that way. Even Inside Higher Ed and the Washington Times headlined the news as “another affirmative action case” (Jaschik, 2013; Sherman, 2013). Similarly, on the front page of the Chronicle of Higher Education (2013), it highlighted the story as “Affirmative Action at Issue Once More” (p. A1). Sure, the case is about the contested Michigan referendum, which prohibits the use of race in college admissions, but as many thorough reporters such as Scott Jaschik (2013), Peter Schmidt (2013), and Mike Sherman (2013) made clear, this case is unlike past affirmative action cases before the U.S. Supreme Court. The issue in this case is not simply about whether diversity is a constitutionally permissible factor in admissions at public colleges. Instead, this case questions the constitutionality of the state referendum as a legal mechanism barring individuals based on race from taking action on their behalf. More specifically, this case is about whether the Michigan ban on affirmative action unfairly blocks access to racial minorities from being able to participate in the political process in such a burdensome manner that they cannot achieve their policy interests. Put simply, it’s not just about affirmative action in college admissions; it’s about the constitutional conceptions of fairness within the political process for racial minorities to enact change without special burdens.
This case is significant for several reasons.
1. Two federal appellate courts disagree.
The circumstances in the BAMN case resemble one from 1997. In that case, Coalition for Economic Equity v. Wilson, the plaintiffs contested the 1996 California referendum (also known as Proposition 209) that also banned race and gender-conscious policies in public operations such as college admissions at all of its public colleges or universities. Except, in the California referendum case, the Ninth Circuit for the U.S. Court of Appeals ruled in favor of the State of California and was not persuaded by the political restructuring argument. In BAMN the Sixth Circuit of the U.S. Court of Appeals ruled in favor of the plaintiffs, who argued that banning race violated the minorities’ equal protection through the law.
2. Judicial value of diversity and minority rights might be illuminated.
We have a better sense about the legal value of diversity in college admissions. In the 2003 Grutter case, the U.S. Supreme Court ruled that race is permissible as a factor for admission when applications are reviewed in a highly individualized, holistic manner. Depending on the statements made and the analytic approach, observers may have a better sense of where the Court stands on issues pertaining to minorities’ rights and the Court’s appreciable understanding of the high barriers for minorities with such laws. This insight is especially important in light of the changes in the Court’s composition4 since we last had an announced affirmative action decision.5
3. Eight state bans on affirmative action already exist.
There are eight states (AZ, CA, FL, MI, NE, NH, OK, and WA) with bans on affirmative action, and while those bans do not necessarily have the same set of facts to match this case, it’s quite possible that whatever happens in this case will alter the status of those bans. Further, there are states that are considering bans on affirmative action or may consider such bans depending on this case’s outcome.
4. State referenda challenges for other matters, besides race, may emerge.
This case is as much (and even more so) about state referenda as it is about affirmative action. A decision on this case may clarify the legal limits of state referenda. Scott Jaschik (2013) conveys quite well the connection between the Michigan Proposal 2 matter with other state referenda such as “California’s Proposition 8, which barred gay marriage in the state” (p. 1). As Jaschik and others rightly observe, these cases share legal issues about the denial of rights to selected individuals when a majority comes in to set the high standard for the insulated minorities to exercise their rights. Viewed another way, we may have a better understanding of political process and civil rights.
With the conflict between the Ninth Circuit’s decision regarding California’s Proposition 209 and the Sixth Circuit’s decision regarding Michigan’s Proposal 2, the U.S. Supreme Court will need to determine how to analyze this case. It is quite likely that the Court may examine the same two prongs that the Sixth Circuit used.
In preparation for that application, student affairs professionals at public colleges and universities, particularly those with state referenda (i.e., AZ, CA, MI, NE, OK), should be evaluating and reporting the process in which students and other state citizens may enact changes to admissions policies. I strongly recommend that public colleges and universities, led by student affairs professionals, construct a committee to gather the data and lead such actions. The committee should analyze the process for a non-race-conscious policy and a race-conscious policy. Specifically, student affairs professionals should conduct a comparative structural burden analysis asking if a state ban does or would reorder the decision-making process and describe the expense, length, and complexity of each process. After collecting and analyzing data, the committee should write an internal report or a publicly disseminated white paper on the findings and recommendations.
- Does your state have, or has it discussed, a law that bans consideration of race or gender from state operations, including college admissions?
- Describe your current process in making admissions policies. When discussing the process, speak in terms of expense, length, and complexity of each process. What are the mechanisms or opportunities in which students, particularly racial minorities, may take to enact changes to the admissions policy?
- How might you educate students about the notion of barriers in the law for racial minorities and other insulated minority groups?
- What state level bans have been entertained or passed in your state (e.g., English only materials from state agencies, prohibiting gay marriage, barring undocumented students from enrollment or in-state tuition)?
- The full name of the Respondent in this case is Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). The organization is often referred to as BAMN, which is an acronym constructed from the last four letters of the organization’s name.
- For purposes of this article, the term “colleges” refers to colleges and universities.
- The State of Michigan established the University of Michigan, Michigan State University, and Wayne State University with different authority and control, so each of those institutions have their own boards and maintain greater autonomy than the other colleges and universities in the State. The other colleges and universities in Michigan follow a different board model governed directly by the State.
- Justice Elena Kagan has recused herself from this case. Her recusal is likely because of her conflicts arising from previous role as U.S. Solicitor General.
- Of course, we will also find out soon the status of Fisher v. University of Texas at Austin.
Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp.2d 924 (E.D. Mich. 2008). [BAMN, 2008]
Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 652 F.3d 607 (6th Cir. 2011). [BAMN, 2011]
Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466 (6th Cir. 2012) (en banc). [BAMN, 2012]
Daniels, P. T. K., Gee, E. G., Sun, J. C., & Pauken, P. D. (2012). Law, policy, and higher education. New Providence, NJ: Matthew Bender & Company (LexisNexis).
Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011) cert. granted, 132 S.Ct. 1536 (2012).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Hunter v. Erickson, 393 U.S. 385 (1969).
Hutchens, N. H. (2012). Supreme Court to revisit issue of race as a factor in higher education admissions. Developments, 10(2), Retrieved from http://www2.myacpa.org/developments/summer-2012/supreme-court-to-revisit…
Jaschik, S. (2013, Mar. 26). Another affirmative action case. Inside Higher Ed. Retrieved from http://www.insidehighered.com/news/2013/03/26/supreme-court-takes-anothe…
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
Schmidt, P. (2013, Apr. 5). Supreme Court to look at Michigan’s ban on race-conscious admissions. Chronicle of Higher Education, p. A14.
Sherman, M. (2013, Mar. 25). Supreme Court to hear another affirmative-action case. Washington Times. Retrieved from http://www.washingtontimes.com/news/2013/mar/25/supreme-court-hear-anoth…
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).
About the Author
Jeffrey C. Sun is an associate professor of educational leadership/higher education and affiliate associate professor of law at the University of North Dakota. He teaches and writes about legal issues pertaining to higher education.
Please e-mail inquiries to Jeffrey C. Sun.
The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Staff Office.