As the country awaits the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin, the Court has decided to take up another case implicating the use of affirmative action in college admissions, Schuette v. Coalition to Defend Affirmative Action. The case presents a different, but equally important issue in the ongoing debate about the use of affirmative action policies: whether or not the State of Michigan can use a ballot measure to alter its constitution so as to deny some of its citizens the equal opportunity even to advocate for the use of affirmative action, let alone implement it. The Asian American Legal Defense and Education Fund (AALDEF) already joined the Equal Justice Society among other civil rights organizations in filing an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit to strike down Michigan’s Proposal 2 as unconstitutional, which it did in November of 2012.
“Affirmative action is an issue that minorities have long advocated for, and Proposal 2 destroys minorities’ and women’s ability even to advocate for their interests without seeking yet another constitutional amendment,” said Khin Mai Aung, Director of AALDEF’s Educational Equity Program. “Proposal 2 is another in a long line of unconstitutional laws that have cut people of color out of the political process. A state constitution, under the Equal Protection Clause of the 14th Amendment, cannot impose barriers that burden only the political participation of minorities.”
Michigan’s Proposal 2 was passed in response to the 2003 U.S. Supreme Court decision in Grutter v. Bollinger that held that the University of Michigan could foster a diverse student body through its admissions process. Jennifer Gratz, the lead plaintiff in one of the University of Michigan Supreme Court cases, then led a campaign to amend the state constitution to prevent the state government from considering race, sex, color, ethnicity, or national origin in public universities and government hiring.
AALDEF advocated that Michigan’s Proposal 2 was unconstitutional because it was solely focused on silencing the voices of affirmative action advocates, in violation of the Equal Protection Clause. Moreover, when Proposal 2 was originally introduced, AALDEF collaborated with a broad coalition of local community partners in Michigan, and released a 2006 report that focused on the false concept that Asian Americans are disadvantaged by affirmative action because they are a “model minority.” For example, compared to white households in 2006, Bangladeshi American households earned 14.3 percent less, Hmong American households earned 19.3 percent less, and Korean American households earned 24.7 percent less.
The continuing constitutional challenge to Proposal 2 is not about the need for affirmative action, but the fact that placing such a ban in Michigan’s constitution imposes an unfairly high bar on minorities advocating for their rights. For example, students advocating for legacy considerations in the admissions process have a range of options in the political process, while students advocating for affirmative action only have only one extremely arduous option: to seek a constitutional amendment.
“As the Sixth Circuit has clearly held, Proposal 2 is discriminatory and unconstitutional. While the Supreme Court considers this case, we will continue in our efforts to fight for its repeal,” said Aung. “We cannot allow measures like this one to silence our voices from the political process, especially when our interests are the ones at stake.”