High Court Hears Critical Affirmative Action Case

by David Almasi

Washington, DC - The U.S. Supreme Court heard arguments in October 2013 that may lead to a definitive decision invalidating race quota policies once and for all.

Legal experts with the Project 21 black leadership network, which has filed an amici brief in the case, urge the court to do so.

"More and more Americans recognize that -- more often than not -- it is government which is the modern impediment to a color-blind society," said Project 21 Co-Chairman Horace Cooper, a former constitutional law professor. "So-called racial preferences divide Americans and do little to actually advance the goal of equal opportunity. Now, the citizens of Michigan have joined in that assessment. We urge the Supreme Court to affirm that decision and move our nation one step closer to a unified nation made of citizens, not races, heading into the 20th century."

In the case of Schuette v. Coalition to Defend Affirmative Action, to be argued before the U.S. Supreme Court on October 15, justices will determine if a lower court was justified in voiding an amendment to the Michigan state constitution, overwhelmingly approved by voters in a referendum, prohibiting preferential treatment in public employment, education and contracting based on "race, sex, color, ethnicity or national origin."

The Michigan Civil Rights Initiative, which became Section 26 of the state's constitution after its enactment, received the support of 58 percent of Michigan voters in 2006. The federal 6th Circuit Court of Appeals struck it down in 2012, at which time it was appealed to the U.S. Supreme Court by Michigan Attorney General Bill Schuette.

"I find it curious that proponents who argue for settled law are the very same people who are opposed to something like the Michigan Civil Rights Initiative. Its premise has already been enacted in other states and was overwhelmingly approved by Michigan voters in a landslide," said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel with the U.S. Senate Judiciary Committee. "Today's youth may have a different perspective on race than perhaps their grandparents. Moreover, American colleges and universities tend to be environments of tolerance as opposed to hotbeds of institutional racism. I hope that the Supreme Court recognizes the need to move from alarmist speculation and allows for the creation of an equal playing field."

Arguments in Schuette v. Coalition to Defend Affirmative Action come less than 100 days after the Court sent the University of Texas at Austin's race-conscious admissions policy back to the 5th Circuit Court of Appeals for re-evaluation to determine whether or not the school exhausted all remedies for enrollment diversity before resorting to race quotas.

Project 21 joined an amicus curiae ("friend of the court") brief written by the Pacific Legal Foundation and filed with the Court in the Schuette case in support of Michigan voters who overwhelmingly sought the removal of preferential race policies in the Great Lakes State.

Project 21's brief argues the legal doctrine of political structure (known as the "Hunter/Seattle doctrine" in legal circles) used to outlaw discrimination in government policies such as housing and busing cannot similarly be used to invalidate Section 26 of Michigan's constitution. The brief explains, "Section 26 enhances protections against discrimination and covers all Michigan government action -- not just a single political issue."

In analyzing the historic use of this doctrine, the brief notes: "Both Hunter and Seattle necessitated the finding of an impermissible racial classification in the challenged law before the political structure doctrine was invoked... The clear effect of Section 26 is to prohibit the State and its political subdivisions from adopting race- and sex-based preference programs."

"Voter initiatives prohibiting preferences based on race in public education have passed and become law in several states," said Project 21's Cooper. "The appeals court was wrong to assume that the so-called 'political structure' doctrine prevents these measures. Even the 9th Circuit recognizes the constitutionality of race neutral admissions policies."

Project 21's brief, written by the Pacific Legal Foundation and joined by the Center for Equal Opportunity, American Civil Rights Institute, National Association of Scholars and the Cato Institute, also contains factual data about how policies instituted after race-based preferences were banned by California voter in 1996 have increased diversity and minority retention rates.

During the last term of the U.S. Supreme Court, Project 21 was involved in the race preferences case of Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder. It will also be involved with the re-hearing of the Fisher case. Project 21 legal experts and other members have discussed these cases in media interviews this year on MSNBC, Fox News Channel, HBO, Glenn Beck's Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor and Reuters.