Separate and Unequal: The Supreme Court, Affirmative Action and Ballot Initiatives

In Michigan, is it fair that violinists, children of alumni, religious minorities, donors and athletes may petition a college admissions office to give their application a second look based on the diversity their experience would bring the class, while racial minorities may not? This is the question the United States Supreme Court will resolve this term in the case of Schuette v. Coalition to Defend Affirmative Action. In Schuette, one of the first cases the Court heard this term, a coalition of civil rights organizations and students, faculty and prospective applicants to the University of Michigan are challenging Proposal 2, a 2006 Michigan ballot initiative that resulted in a state constitutional ban on any consideration of the race of applicants in college admissions decisions. Proposal 2 resulted in an inequitable admissions process where educational institutions may consider a broad array of criteria in order to recruit a diverse student body, as long as race is not one of the criteria.

Under Proposal 2, Black undergraduate student enrollment at public universities in Michigan declined by 33 percent and Latino enrollment declined by 10 percent. And, since Proposal 2 took effect, there has been a 50 percent decline in the number of Black students who have earned medical degrees.

In 2011, the United States Court of Appeals for the Sixth Circuit struck down Proposal 2, finding it placed an unconstitutional and unfair burden on those who sought to have race considered as one of many factors in the admissions process in an effort to recruit a diverse student body. The court recognized that Proposal 2 codifies racial discrimination; only racial minorities and their supporters are required to overturn a constitutional amendment in order to have their experiences considered during the college admissions process. While it is unclear how the Supreme Court will rule, Schuette is not the first time the Court has addressed ballot initiatives that burden minority participation in the political process. For example, the Court struck down a Washington ballot initiative that blocked the use of busing to integrate Seattle's public schools. In this case, the Supreme Court concluded that the Constitution does not allow the "racial nature" of a decision to determine the decision-making process, nor can a ballot initiative impose "substantial and unique" burdens on racial minorities. The Court similarly struck down Colorado's Amendment 2, which prohibited any political jurisdiction in the state from taking steps to protect the rights of gays and lesbians.

Many opponents of race-conscious admissions programs rely on the premise that admissions processes should be "fair." But Proposal 2 does just the opposite. It restructured the political process to create two separate and unequal systems for admissions, one where every element of an applicant's experience, other than their racial experience, is fit for consideration. Proposal 2 intrudes on a university's right to adopt an admissions process that fully considers what prospective students might contribute to the university, and create an educational environment that welcomes and celebrates a full range of diversity.