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A Step Back From Affirmative Action?

This week, the U.S. Supreme Court took a step towards ending racial preferences and affirmative action programs.  In 2006, Fifty-eight percent of voters in Michigan voted to prohibit racial quotas and preferences in proposition 2.  Its key provision reads:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall 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 language of this state constitutional provision of course tracks the language found in both Title II and Title VII of the Civil Rights Act of 1964, which deal with public accommodations and employment relations, respectively.

In Schuette v. BAMN, the Court ruled that such a prohibition passed Constitutional muster.  As Justice Scalia asked in his concurring opinion:  “Does the Equal Protection Clause of the Fourteenth Amendment forbid what it expressly requires?”

In her dissent, Justice Sotomayor made an impassioned argument that minorities benefit from racial quotas and preferences and taking steps that could eliminate their use was a step backwards.  Sotomayor insists that racial inequality persists in America and allowing race to be considered as a factor in decisions to admit a student, hire an employee, or retain a contractor helps alleviate inequities.

In Richard Sander and Stuart Taylor’s 2012 book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help and Why Universities Won’t Admit It, the authors make a compelling argument that minority students admitted with below-average test scores tend to drop out without graduating, avoid science and technology courses, and are even stigmatized as inferior.  Many commentators have drawn parallels to these conclusions to the private workforce.    

The decision deals only with public institutions that employ a colorblind policy, and reaffirmed that such public institutions should be responsive to the will of popular majorities in a democratic society.  But some commentators have wondered if the key distinction that governs equal protection law will continue to rest on the difference between the way in which the state runs its own affairs, and the way in which it legislates how private individuals and firms should be able to run theirs.  It remains to be seen if the impact of Schuette will stop at the conduct of public institutions, or if it eventually influence the ability to force private institutions to follow what the public dictates.

Justice Roberts stated “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”  What is clear is that Schuette did not end the debate, but it did open the door to changes in affirmative action policies, not only in the context of government action in admissions to schools, but potentially in private action in the workforce as a whole.

About the Author

Holly J. Newman is an attorney practicing out of our Minneapolis office. She is a member of the Labor & Employment Relations, Litigation, Construction and Intellectual Property practice groups. Contact Holly by email or by phone at 612-305-1450.


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