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Supreme Court Upholds Michigan Ban on Affirmative Action

By Kassouni Law - April, 25th, 2014

A common law system (one where previous court opinions define the meaning of the law) can be very useful.
It can also result in some rather bizarre arguments being taken seriously, and even garnering the support of
some members of the Supreme Court. Case in point: the plaintiffs position in Schuette v BAMN which the
Supreme Court decided this week.

At issue in the case was a Michigan state constitutional amendment that banned racial discrimination,
including affirmative action, in college admissions. The amendment was adopted in response to the Supreme Courts
opinion in Grutter v. Bollinger, holding that narrowly tailored discriminatory college admissions programs that use race
as one factor in the admissions process do not violate the Equal Protection Clause of the US Constitution.

Given that states may erect greater protections for individual rights than those provided by the Federal Constitution,
the voters of Michigan Adopted Proposal 2, banning racial discrimination in college admissions altogethereven if the
program is narrowly tailored. California adopted a similar ban, Proposition 209, several years earlier. That ban was
upheld against constitutional challenges in the California Supreme Court and the Ninth Circuit Court of Appeals and
was noted approvingly by the US Supreme Court in Grutter.

Nonetheless in Schuette, BAMN (an organization whose stated goal is to preserve racial preferences By Any Means
Necessary) brought suit alleging that Proposal 2 violated the Equal Protection clause by prohibiting affirmative action.
If the argument that a law prohibiting racial discrimination could possibly violate the Equal Protection Clause a
clause that, on its face, prohibits racial discrimination makes your head spin, you are not alone. Justice Scalias
concurrence in the present case echoed this sentiment noting that this line of argument forced the Court to confront a
frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text
plainly requires? Or in the alternative Does the Equal Protection Clause forbid a State from banning a practice that
the Clause barelyand only provisionallypermits?

Yet, in a common law system there is always ambiguous language in a previous opinion that a litigant can hang its hat
on to achieve its desired result. And, if a justice happens to really want that result for personal or political reasons, she
can cite that case as a shield for her opinion. In the present case, the case was Washington v. Seattle School Dist.
No. 1.

In Washington v. Seattle School Dist. No. 1 the court struck down a law that made it more difficult for school districts
to adopt mandatory bussing laws to enforce school integration after Brown v. Board of Education. While the law was
facially neutral as to race, the Court found that its overarching effect was to disadvantage minorities and thus that the
law violated the Equal Protection Clause. The decision in Washington v. Seattle School Dist. No. 1 has always been
controversial and is generally seen as an outlier in Equal Protection Jurisprudence. (Generally, a law must have a
discriminatory purpose in order to violate the Equal Protection Clause.) Nonetheless, Washington v. Seattle School
Dist. No. 1 has remained on the books as a landmine waiting to explode.

That is what happened in the Courts most recent case. BAMN argued that as in Washington v. Seattle School Dist.
No. 1, Michigans constitutional ban would make it more difficult for minorities to lobby for racial preferences, and
therefore, violates Equal Protection. Thankfully this nonsense was rejected by six members of the Supreme Court,
including the usually liberal Justice Breyer. But justice Sotomayor, a vehement supporter of affirmative action, would
have struck down the ban under the reasoning in Washington v. Seattle School Dist. No. 1 described above.

And that should be a reminder to litigators everywhere: never assume that an argument is too ridiculous to warrant
your attention. There is likely a case somewhere that can be twisted enough to support any position, and a
sympathetic judge that is just looking for a reason to rule in your opponents favor.