A few weeks back, the US Supreme Court heard oral arguments on the question of whether it’s constitutional to allow affirmative action in college admissions. That decision, in the case of Fisher v. Texas, will likely come down next spring.
Yesterday, however, a federal appeals court ruled on the related — but distinct — question of whether it’s constitutional to ban affirmative action in college admissions, and the differences between the two cases are fascinating … and revealing.
The issue of affirmative action’s constitutionality is usually framed as it is in Fisher v. Texas, as a matter of whether states can take race into account in admissions. In the past, the Supreme Court has ruled that they can, in limited circumstances, and the question at hand in Fisher is whether that will remain the law of the land. But in yesterday’s case out of Michigan, the court approached the issue from another perspective.
Michigan’s public higher education system employed affirmative action in admissions from the 1960s until 2006, when a state referendum banned the use of race as a factor in the selection of students. What the appeals court ruled yesterday is that this referendum, and the resulting constitutional amendment, uniquely harms students of color.
“No other admissions criterion,” the judges wrote, not “grades, athletic ability, geographic diversity, or family alumni connections,” is barred from consideration in the selection process. And “Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue — and only this issue” in the absence of a constitutional amendment.
The court’s ruling in this case recognizes that affirmative action is an uncontroversial reality in the United States for all sorts of students. If you’re from a poor and/or remote part of the state, you’re welcome to a leg up. If you’re a great point guard applying to a school with a lousy basketball team, that’s wonderful. If your grandfather was a dean or your mom donated a million dollars, the school is welcome to take that into consideration. But in a state like Michigan, the college can’t give you the same consideration because you’re a member of a racial or ethnic group with a history of discrimination and a resultant underrepresentation in the student body.
The “simple but central principle” at stake here, as the court recognized, “is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles than those faced by other groups to achieve their political objectives.”
Kudos to the Sixth Circuit Court of Appeals. They got this one exactly right.