Academic journal article Journal of Law and Education

Taking a Step Back from Civil Rights: The Supreme Court's Approval of Affirmative Action Bans

Academic journal article Journal of Law and Education

Taking a Step Back from Civil Rights: The Supreme Court's Approval of Affirmative Action Bans

Article excerpt


The 2014 Supreme Court decision regarding affirmative action potentially marks the beginning of a proliferation of states enacting affirmative action bans.1 In upholding voter-enacted affirmative action bans,2 the Supreme Court turned a blind eye to discrimination these bans will create. Section II of this note highlights Proposal 2, Michigan's affirmative action ban, and the lawsuits that formed following the constitutional amendment. Section III discusses the Supreme Court's ruling and reasoning for overturning the Sixth Circuit's decision. Section IV outlines the negative effects of affirmative action bans, and Section V addresses the Supreme Court's departure from their political process jurisprudence. The final section concludes that the Supreme Court's departure from their precedent in the Schuette decision will result in an increased difficulty on minorities seeking to gain admission to undergraduate institutions.


In 2006, a Michigan ballot initiative, Proposal 2, introduced a constitutional amendment that banned affirmative action.3 Proposal 2 was approved by fifty-eight percent of Michigan voters and amended the state constitution to attempt to prohibit discrimination and preferential treatment in government contracting, public employment, and public education.4 Proposal 2 eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions, although for nearly a half century Michigan policy had allowed consideration of those attributes.5 However, it did not eliminate any other admissions criterion such as grades, athletic ability, geographic diversity, or family alumni connections.6 Because the ban was a constitutional amendment, it prevented public universities and their boards from reexamining the issue of affirmative action.7 Following the enactment of Proposal 2, proponents of affirmative action challenged the constitutionality of the amendment because of the possible effect on public universities.8

In 2012, the United States Court of Appeals for the Sixth Circuit struck down Proposal 2 on the basis that it violated the Equal Protection Clause of the United States Constitution.9 In a split 8-7 decision the majority held that Proposal 2 disadvantaged minorities and modified the political process by preventing any legislation that would be beneficial to minorities.10 * Due to the burden on minorities, the Sixth Circuit analyzed the law under a strict scrutiny standard of review and concluded that the Michigan Attorney General, Bill Schuette, failed to establish that the amendment advanced a compelling government interest."

When the case was appealed to the Supreme Court, the Schuette decision became the Court's second major affirmative action ruling regarding higher education in less than a year. In June of 2013, the Court held in Fisher v. University of Texas that affirmative action was still permissible in some circumstances but ordered the most heightened level of judicial review for such cases.12


On April 22, 2014, the Supreme Court overturned the Sixth Circuit's decision.13 The Court held in a 6-2 ruling that states are free to change their constitutions to prohibit public universities from using race as a factor in admission decisions.14 The decision spanned more than 100 pages and detailed the justices' conflicting views on the issue.15

Justice Kennedy, writing for the majority, wrote, "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it."16 The Court essentially stated they had no authority to overturn the voters.17 However, the Court had previously overturned voter initiatives in Hunter v. Erikson1S and Washington v. Seattle School District No. !,'* on which the Sixth Circuit relied when concluding that Proposal 2 restructured the political process and made it harder for minorities to voice their concerns. …

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