The Hunter Becomes the Hunted: Will Schuette Hook Fisher?

On Tuesday, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action, the latest case on affirmative action.  This came just a few months after the Court published its decision in Fisher v. University of Texas.  In Fisher, the question was whether race-conscious admissions policies at a public university were constitutional.  The Court in effect said yes, upholding limited affirmative action and allowing the University of Texas to continue its race-conscious admissions policies. 

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies, and specifically focused on how they serve the legal profession by providing a diverse pipeline of undergraduate and law students. 

In Schuette, the Court is considering the constitutionality of Michigan’s 2006 state constitutional amendment, coming out of ballot initiative Proposal 2.  This prohibits preferential treatment based on race, color, sex, ethnicity, or national origin in state college admissions, jobs, and other publicly funded institutions.  In a sense, it is the reverse of Fisher – in Schuette, the question is whether the Constitution requires public universities to at least have the option of instituting race-conscious admissions policies like the University of Texas.

On Tuesday afternoon, each side had its 30 minutes before the Court .  The justices actively participated, asking many questions and framing the arguments.  John Bursch, Michigan’s state solicitor general argued that the Equal Protection Clause could not possibly require affirmative action plans for state institutions, because it barely permits them under only the strictest scrutiny.  He faced tough questions from Justices Sotomayor and Ginsburg, whose demeanors appeared to set them up as opponents to the constitutional amendment.  

Mark Rosenbaum and Shanta Driver argued on behalf of the plaintiffs that a constitutional ban on affirmative action was a violation of equal protection, but struggled to define the exact point of violation.  For example, Justices Roberts, Kennedy and Alito asked, if discretion to use race-conscious admissions policies was unconstitutional when enshrined in the state constitution, would it be constitutional if it was in the hands of the University Regents?  The University President?  The Legislature?  The Governor?

We look forward to hearing the Court’s answers.  Will the outcome impact the affirmative action victory we fought for in Fisher?  Only time will tell.  After all, as famed Supreme Court lawyer Ted Olson explained at the BBA’s Annual Meeting Luncheon, win or lose, we should be proud to have the Supreme Court.  It is a model for government institutions world-wide, because the arguments described here will result in written opinions this summer as the Court tackles yet another tough question. 

- Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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