The Supreme Court yesterday upheld a Michigan state constitutional ban on affirmative action for women and minorities in public education, employment, and contracting.

The decision in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) did not address the constitutionality of affirmative action itself. Instead, the Court focused on whether an amendment banning the practice violated the Equal Protection Clause of the US Constitution. And a majority of the Court found that it did not.

BAMN argued that the amendment prevented women and minorities from using the political process to push for one specific policy: affirmative action. So, University of Michigan alumni could advocate for an admissions policy that would consider applicants’ legacy status. Those alumni could lobby the Board of Regents for that status or support candidates to the Board – who are elected – that hold their views. For legacy admission, the political process is open. The amendment forecloses the processes for one policy only: affirmative action. Consequently, the amendment creates a unique burden on minorities. For this group, the rules of the game have changed.

In 2006, Michigan voters approved Proposition 2 to amend the state constitution by adding the affirmative action ban. Writing in the Fall 2013 issue of Ms. magazine, attorneys Debra Katz and Abigail Cook-Mack, explained that already, “the ban’s impact on Michigan’s  public universities has been staggering. The percentage of black, Latino and Native American student admissions in the University of Michigan’s undergraduate program has fallen by a third.”

The amendment, however, does not only affect minorities and public education. The affirmative action ban – styled after California’s affirmative action ban, Proposition 209 – also applies to women and and affects government hiring and the award of government contracts.

Media Resources: Ms. magazine Fall 2013, Supreme Court

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