With the newly released docket for the Supreme Court, there are many interesting cases the court will tackle this year, ranging from Campaign Finance to the President’s ability to make recess appointments. However, one case that may have particular importance to the University is Schuette v. Coalition to Defend Affirmative Action.
Schuette will decide whether a 2006 amendment to Michigan’s constitution that bans “all sex- and race-based preferences in public education, public employment, and public contracting,” primarily focusing on public education, is constitutional or violates the Equal Protection Clause of the Fourteenth Amendment.
Last year, the court took up Fisher v. University of Texas at Austin (2012), another affirmative action case. However, the court ruled that the Fifth Circuit court improperly applied the strict scrutiny test and upheld the current standard.
Strict scrutiny is a standard of judicial review used to test whether a governmental act can is constitutional. This standard applies mainly to laws that discriminate based off of race. In order for a law related to race, to pass under strict scrutiny, it must have a “compelling governmental interest, be “narrowly tailored,” and “least restrictive” means possible. Historically, affirmative action has passed under this test because race plays an important role in determining a person’s diversity and promoting diversity is a compelling state interest.
Because Justice Elena Kagan has recused herself from the case because of her former role as Solicitor General, it appears that Justice Kennedy, the more moderate member of court on affirmative action, will play a major role.
If he votes for it, along with the three more liberal justices who are likely to support affirmative action, the Supreme Court will defer to the Sixth Circuit court’s decision, which upheld affirmative action. If he votes against it, along with the four more conservative justices, he will create a 5-3 majority to overturn any usage of race in college admissions across the state.
Unfortunately, the argument has shifted from diversity to giving certain races preferential treatment. And as long as that view is held, wrongly or not, it will make any school’s attempt to create diversity a heck of a lot harder. While the case could go either way, hopefully, it will highlight that race is considered “as one modest factor among many others to achieve diversity,” which is in theory constitutional as Justice Kennedy mentioned in a 2003 affirmative action opinion.