This is a big year for the Supreme Court. Within the coming months, it will decide the constitutionality of the Defense of Marriage Act, California’s Prop 8 law, and the affirmative action policies of many universities. The significance of this year’s developments, however, need not keep us from looking ahead. Yesterday, the Supreme Court added a new case regarding affirmative action to its docket: Schuett v. Coalition to Defend Affirmative Action.

Before looking at the significance of this selection, it is appropriate to review the current state of affirmative action before the Court.  The current precedent, established by Grutter v. Bollinger (2003), holds that universities may consider race or ethnicity in admissions decisions, but that they may not establish quotas for members of certain racial groups or process their applications separately. However, Fisher v. University of Texas, a case that the Court is expected to decide shortly, might very well overrule Grutter. If this is case, affirmative action at the university level will be unconstitutional. Justice Roberts’ questions during the oral argument suggest that the most pertinent issue in Fischer is determining at what point universities seek to abandon affirmative action measures, at what point they will no longer be necessary. He did not receive a direct answer in the oral argument, perhaps because a numerical answer might be perceived as a quota of sorts.

Schuett v. Coalition to Defend Affirmative Action not only deals with the constitutionality of affirmative action, but the means through which a state can legislate the subject. Proposition 2, an amendment to Michigan’s constitution issued by popular referendum (58% in favor), eliminated the consideration of “race, sex, color, ethnicity, or national origin” in college admissions and government hiring. On the onset, the challenge might appear similar to that in Fisher. However, the ruling of the appeals court majority highlights an additional element of the case. Judge Cole writes that, because Proposal 2 also entrenches this prohibition at the state constitutional level, thereby preventing public colleges and universities or their boards from reversing it without repealing the amendment, it violates the equal protection clause in the fourteenth amendment by placing special burdens on racial minorities’ ability to legislate in their own interest.  He uses the following example:

“A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities… could lobby the admission’s committee, [petition] the leadership of the university, [seek] to influence the school’s governing board… [or initiate] a statewide campaign to alter the state constitution… A black student seeking the adoption of a constitutionally permissible [under Grutter] race-conscious admissions policy… could do only one thing to effect change: [attempt] to amend the Michigan Constitution—a lengthy, expensive and arduous process… The existence of such a comparative structural burden undermines the Equal Protection Clauses’ guarantee that all citizen’s ought to have equal access to the tools of political change.”

Citing Hunter v. Erickson, which connects “making it more difficult [for any particular group] to enact legislation in its behalf” with restricting that group’s right to vote, the Circuit Court thus rules Proposal 2 unconstitutional.

This argument carries two grand implications. First, as Michigan’s Attorney General points out, it seems to imply that state governments must engage in affirmative action. Second, it suggests that no level of government that has a subordinate level (including the federal) can pass a no-race-preference regulation, ordinance, or law. As most representative levels of government have a subordinate in the contractors and corporations they manage, this necessarily prohibits no-race-preference regulation at these representative levels. This leads to the unintuitive conclusion that such a contentious issue as affirmative action can only be decided by the lowest rung on the government’s totem pole. Any other arrangement would constitute the majority not only winning the vote, but also “[rigging] the game to reproduce its success indefinitely.”

I don’t think that the Circuit Court’s reasoning holds up. Policy legislation in the United States must arise from the people’s representatives or not at all. This Court’s decision, in the sense that mandates affirmative action, itself constitutes major legislation. Surely that constitutes a burden to be overcome, thereby violating the Court’s own standard. The Court’s reading of Hunter is also problematic. It’s doubtful whether requiring an activist to go through the democratic process (repealing Proposal 2 would only require a majority vote) as opposed to negotiating with those transitively appointed through the democratic process actually constitutes making activism more difficult. Even if it does, requiring activists to work through the democratic process is perfectly reasonable.  I would thus argue for overruling the Circuit Court’s opinion in Schuett.

The Court’s decision to consider Schuett gives it incredible leeway to further shape the status of affirmative action in the United States after deciding on Fisher. For example, in addition to reaffirming the legality of affirmative action through Fischer, it might also mandate the practice through the equal protection argument. Given the current makeup of the Court, this is unlikely. Alternatively, the Court might permit institutions to practice affirmative action through Fisher, yet restrict statewide legislation to that effect through the same equal protection argument. This would require tinkering with the argument in Schuett, but is certainly conceivable.

However, if the Court rules affirmative action unconstitutional in Fisher, it is unclear what ruling on Schuett would accomplish; the case would be moot. Thus, because Schuett allows the Court to shape the status of constitutionally permissible affirmative action, it is reasonable to assume that adding Schuett to its docket signals that the Court has concluded that affirmative action is constitutionally permissible. Regardless of my prediction’s accuracy though, it is at least certain that this new addition to the Supreme Court’s docket will be as important to this country’s future as Fisher and will be well worth following in the coming year.

The Circuit Court’s Opinion on Schuett v. Coalition to Defend Affirmative Action can be found at http://www.ca6.uscourts.gov/opinions.pdf/12a0386p-06.pdf

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