May the voters of a state amend their state constitution to prohibit discrimination and preferences based upon race? The Supreme Court will address that question. Today, with Justice Kagan recusing herself, the Court granted certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action, another case concerning racial preferences.
In 2006, Michigan voters approved the Michigan Civil Rights Initiative (Proposal 2), amending their state constitution to to specifically prohibit public universities and the state from discriminating and granting preferences based on race in the operation of public employment, public education, or public contracting. Proposal 2 was immediately challenged in federal court by proponents of racial preferences and the Sixth Circuit ultimately concluded that Proposal 2 violated the Fourteenth Amendment to the U.S. Constitution.
As we mentioned in a post earlier this year, the Sixth Circuit’s decision teeters on the brink of incoherence, and conflicts with decisions of other appellate courts. In 1996, California voters passed the California Civil Rights Initiative, or “Proposition 209,” amending the California Constitution to prohibit the state and its subdivisions from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public contracting, and public education. In contrast to the Sixth Circuit, the Ninth Circuit and the California Supreme Court both held that Proposition 209 did not violate the Fourteenth Amendment. In January, attorneys for PLF filed a brief in the Supreme Court urging it to take the action that it did today.