Two appeals court decisions announced this summer promise a return of affirmative action to the Supreme Court. In one, the full Fifth Circuit voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. In the other, issued last month, the Sixth Circuit invalidated Michigan’s voter initiative that had resulted in the state constitution banning the use of affirmative action in government hiring and admissions to public education. A challenge to a similar ban in California is on appeal to the Ninth Circuit.
It has been fifty years since President John F. Kennedy issued Executive Order 10925, which included the first reference to the phrase “affirmative action.” The order was in the interest of establishing the Equal Opportunity Committee (later re-named the Equal Employment Opportunity Commission), and it read, in part, this way…
WHEREAS discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States…[all government contractors]…shall not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.
Even then, it was unclear what the Order meant by “affirmative action,” but over time we have come to associate the phrase with providing expanded opportunities to minorities through everything from quota systems to less overt methods like the “plus system” addressed in the Fifth Circuit opinion, all of them aimed at reversing entrenched racial discrimination. Of course, from the beginning many have noted the irony: in order to correct the centuries of wrong doing when racial minorities were denied equal access to education and jobs due to the color of their skin, we now give minorities a built-in advantage and majorities a built in disadvantage because of the color of their skin. Is that any way to assemble a “color-blind” society?
Only a few years ago, the Court examined this issue in Grutter and Graz, two cases from Michigan that looked at the question of affirmative action. In the first, Grutter, it allowed for the University of Michigan Law School’s use of race as a factor in admissions since it read the goal of a diverse student body as a “tailored use”; in Graz, however, which involved the undergraduate admissions policy of the University of Michigan, it ruled that the points system which the university used to determine acceptance was too “mechanistic.” (On a scale that required 100 points out of 150 maximum, it automatically gave twenty points to an underrepresented minority and just twelve points to someone who scored a perfect 1600 on the SAT tests). In the opinion (the two cases were decided together) Justice Sandra Day O’Connor noted that sometime in the future, maybe twenty-five years out, racial affirmative action would no longer be necessary in order to promote diversity. The statement – odd, since it suggests that the principle of equal protection in the constitution is not absolute; instead, it is time-sensitive – gave rise to the question: why twenty-five years from now? Why not twenty, ten or five? Indeed, why not now?
The voters spoke next. A ban on affirmative action was inserted in the Michigan state constitution after a 2006 voter initiative. Led by Jennifer Graz (seen here), the lead plaintiff in the undergraduate case, the initiative, known as Proposal Two, passed by 58 percent to 42 percent. Bans like Michigan’s are currently on the books in California, Nebraska and Washington. But the Sixth Circuit decision invalidating Proposal Two is binding only in Kentucky, Michigan, Ohio and Tennessee. That makes it ripe for Supreme Court review: the Court is determined to adjust differences between districts on issues of constitutional law.