by Adam Petrun, 3L Contributor
But
after its passage, in another case, the constitutionality of the amendment was
challenged outright as being violative of due process and equal
protection. In a constitutional challenge
led
by a consortium of affirmative action supporters collectively known as the
“Coalition to Defend Affirmative Action, Integration & Immigrant Rights
& Fight for Equality by any Means Necessary” (or, “BAMN” for short), the
Sixth Circuit struck down the amendment in 2011, in BAMN v. University of
Michigan.
Law
students: do you remember the United States Supreme Court cases of Grutter
v. Bollinger and Gratz v. Bollinger (2003)? If you were (awake) in a constitutional law
class, you probably recognize that these cases form the foundation for existing
affirmative action precedent. But do you know that the High Court’s final
decisions in those cases were only the beginning of the plaintiffs’ legacy?
Back in
November, I
described for you how Grutter is making headlines yet
again, through the pending Supreme Court case of Fisher v. University of
Texas. In Fisher, the Supreme
Court will determine whether Grutter remains sound precedent, and
specifically examine the issue of whether higher educational institutions can
continue to use race as a factor in admissions criteria. As of present, it appears likely that the
Supreme Court will rule against the permissible usage of race, throwing the
holding of Grutter into jeopardy.
Thus, even though Barbara Grutter might have been unsuccessful in her
legal efforts back in 2003, she may end up having some delayed vindication in Fisher.
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| Lyndon B. Johnson meeting with Martin Luther King, Jr. (left), Whitney M. Young Jr., and James Farmer in 1964. © Universal History Archive/Getty Images |
But
what about Jennifer Gratz, the Michigan plaintiff from the eponymous companion case
to Grutter? In Gratz, decided on the same day as Grutter, Ms.
Gratz ended up winning her lawsuit, as the Supreme Court struck down the
admissions policy in place at the undergraduate program of the University of
Michigan. In that case, the Court recognized
the significant differences between the programs at issue in Gratz and Grutter:
in Grutter, race was considered as a non-determinative factor among the
whole applicant pool, whereas in Gratz, applicants received an
individual admissions criteria boost simply for being a member of a qualified
minority group. This, according to the
Supreme Court in Gratz, was a type of overt discrimination not allowable
under strict scrutiny analysis.
So Ms.
Gratz had her day in Court—and was victorious.
But the story doesn’t end there.
Three years after the Supreme Court handed down Grutter and Gratz,
Ms. Gratz decided to lead a concerted effort to amend the Michigan Constitution,
in order to eliminate affirmative action entirely
within the state. Ms. Gratz had a clever
proposal: she wanted the State of Michigan to “not discriminate against, or
grant preferential treatment to, any individual or group on the basis of race,
sex, color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting.”
The
effort was supported by a number of influential individuals, including Ward
Connerly, an African-American Republican who had successfully lobbied a similar
antidiscrimination measure in California, passed in 1996. And the amendment reads innocuous enough,
doesn’t it? How can one argue with
asking the state not to discriminate on the basis of race? The citizens of Michigan agreed, and in 2006,
the amendment passed by popular referendum (as “Proposal 2”) at the ballot box,
by a margin of 58% to 42%.
But not
so fast. A plethora of public interest
groups tried to prevent passage of the amendment, and promptly filed for
injunctive relief to keep it off the ballot.
In one such case, Operation King’s Dream v. Connerly, the Sixth
Circuit rejected that challenge, but condemned egregious irregularities related
to placing Proposal 2 on the ballot, such as duplicate signatures and
signatures by nonregistered voters.
Specifically,
the court explained that “[t]he record and the district court’s factual
findings indicate that the solicitation and procurement of signatures in
support of placing Proposal 2 on the general election ballot was rife with
fraud and deception. . . . By all accounts, Proposal 2 found its way on the
ballot through methods that undermine the integrity and fairness of our
democratic processes.” The court arrived
at this conclusion after examining, among other evidence, a 2006 Michigan Civil
Rights Commission study which strongly supported the same conclusion. In fact, as the court noted, the Defendants
did not try to rebut this finding at all. Yet the court indicated that “we
must be guided by law, not outrage” and still allowed Proposal 2 on the ballot.
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| © CNN.com |
As
the Sixth Circuit reasoned, strict scrutiny applied to the amendment, because it:
(1) had a patently racial focus, targeting a goal or program that “inures
primarily to the benefit of the minority”; and (2) reallocated political power
and the decisionmaking process, such that it placed “special burdens” on a
minority group’s ability to achieve its goals through the democratic
process. In other words, the racial
majority of voters created significant and unfair democratic obstacles for
minority groups to try and reverse the course of this legislation, and keep
affirmative action alive. By a narrow
2-1 vote, the Sixth Circuit struck down the amendment, holding that Michigan cannot
ban affirmative action through these means.
An
en banc rehearing ensued by the Sixth
Circuit, and in November 2012, yet another bitterly divided opinion handed down
by the full circuit affirmed this decision, by a margin of 8-7. The holding was limited, however, in that the
amendment was unconstitutional only as applied to “racial minorities”. The seven dissenting judges wrote with scorching language, such
as:
“[T]oday’s
decision is the antithesis of the Equal Protection Clause of the
Fourteenth
Amendment”
Amendment”
“What
else at any rate could the people of Michigan have done?” and
“Today's lawsuit
transforms a potential virtue of affirmative action into a vice.”
The
most intriguing argument raised in support of the amendment’s constitutionality
was perhaps that Grutter commanded
affirmative action policies to be “limited in time.” As was discussed in BAMN, given that Grutter
commanded affirmative action to be a temporary measure, how else could this command
have been implemented than by eventually ending the practice?
Certiorari
has already been filed to the United States Supreme Court, and given that the
issue of affirmative action is one of national importance, already on the
horizon in Fisher, it seems likely that certiorari will be granted. The decision to grant certiorari should be
bolstered by the presence of a circuit split, as Arizona, California, Florida,
Oklahoma, Nebraska, New Hampshire, and Washington all have similar legislation
in place. The Ninth Circuit in Coalition
for Economic Equity v. Wilson upheld California’s legislative ban on
affirmative action, arriving at the opposite conclusion as in BAMN.
As
these events have demonstrated, there is currently a grand game of
cat-and-mouse being played out in courts across the country, creating tension
between the Supreme Court’s holdings in Grutter and Gratz, and
state legislatures which prohibit the very same admissions practices endorsed
by those cases. This issue seems fit to
be resolved definitively in the near future on the heels of Fisher—but
then again, who knows what the Supreme Court will do?
Adam Petrun is a 3L guest
contributor for JURIS. He earned his
undergraduate degree from Duquesne University in 2010, where he majored in
Political Science and Sociology, with a concentration in Criminal Justice. He is an associate editor of the Duquesne Law
Review, and has recently authored a law review comment on the Supreme Court’s
upcoming decision in Fisher v. University of Texas, in particular examining the
historical background behind that case.
Adam will graduate from the Duquesne University School of Law in June 2013,
and currently is a law clerk for Swensen Perer & Kontos, P.C., in Pittsburgh. He may be reached at petruna@duq.edu.
