Supreme Court to Hear Case Challenging Michigan's Ban on Race-Conscious Admissions

March 25, 2013

DETROIT – The U.S. Supreme Court announced today that it will hear arguments in a case seeking to strike down Michigan’s Proposal 2 as unconstitutional because it bars students from lobbying universities to consider race as but one of nearly 100 factors in admissions.

“The appeals court properly recognized that the system created by Proposal 2 is unfair and unconstitutional. Prop 2 allows alumni to simply drop in on admissions committee members to lobby for a legacy policy, yet forces proponents of admissions policies that include students from broadly diverse backgrounds, including all racial and ethnic groups, to hit the streets with petitions to amend the Michigan Constitution before they can have the same chance,” said Mark P. Fancher, ACLU of Michigan Racial Justice Project Attorney. “Our government should not be forced to, based on race, cherry-pick who has a voice at the decision making table. We look forward to presenting these arguments to the U.S. Supreme Court and are hopeful that the Court will allow this decision to stand.”

The lawsuit, filed in 2006 by the ACLU, NAACP, NAACP Legal Defense and Educational Fund (LDF) and the law firm of Cravath, Swaine and Moore, LLP, challenged the constitutional amendment, which eliminates the consideration of race in university admissions despite the fact that such admissions policies have been upheld by U.S. Supreme Court.

After a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit struck down Proposal 2 agreeing that it violated the Equal Protection Clause, Michigan’s attorney general requested that the full court reconsider the case. In November, a 15-judge panel struck down the amendment again explaining that a state law violates the Equal Protection Clause when it makes the processes of government decision-making turn on the racial nature of the issue being considered.

For example, in this case if an alumni association thought that legacy status should be considered in admissions, it would have three available options -- lobby the admissions committee, petitioning the school governing board or contacting university leaders. Only as a last resort might they consider a statewide ballot measure to amend the Constitution. However, those interested in the consideration of race can only undertake the arduous and expensive task of amending the Michigan Constitution before they can even lobby the university for policies already affirmed by the United States Supreme Court.

“Michigan’s proposal aims to unfairly keep students from encouraging universities to consider race as one factor in admissions, but does not do the same for those who are trying to get the school to acknowledge other factors, such as legacy or athletic achievement,” said Dennis Parker, director of the ACLU’s Racial Justice Program. “The proposal discriminates against students of color, and we hope the Supreme Court upholds an earlier ruling that found it unconstitutional.”

This case does not address the merits of race-conscious admissions, which have been previously upheld by the Supreme Court. For instance, in Grutter v. University of Michigan, the Court held that the Equal Protection Clause of the U.S. Constitution does not prohibit the narrowly tailored use of race in admissions decisions to further the educational benefits that come from a diverse student body.

Key News & Documents

Document | Read the Appeals Court decision

Document | Read the brief opposing cert

ACLU Issues | Racial Justice