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In response to a November ruling from the U.S. Sixth Circuit Court of Appeals that overturned the Michigan Civil Rights Initiative (MCRI), state Attorney General Bill Schuette is petitioning the U.S Supreme Court to revisit the constitutionality of preferential policies. A new non-profit group, the XIV Foundation (as in 14th Amendment), has filed an amicus brief on behalf of Schuette, calling on the U.S. Supreme Court to reverse the 6th circuit ruling. A definitive ruling on affirmative action in college admissions and government hiring could be in order for 2013.
Jennifer Gratz, the plaintiff in the 2003 Gratz v. Bollinger Supreme Court decision that struck down the quota system in place at the University of Michigan’s undergraduate school, co-founded the XIV Foundation shortly after the 6th circuit court ruled against the MCRI.
“Much progress has been made over the past 15 years in challenging the discriminatory policies that are errantly described as ‘affirmative action’ policies,” Gratz said in press release. “Eight judges put this progress at risk when they decided to overturn MCRI and the will of over 2.1 million Michigan voters who chose equality over discrimination.”
The MCRI is closely modeled on California’s Proposition 209, which states: “The state shall not discriminate against, or grant 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 education, or public contracting.”
Similar measures have also passed in Washington state, Nebraska, Arizona, Oklahoma, Florida, and New Hampshire.
Since the 9th Circuit Court of Appeals has twice upheld California’s Proposition 209, the XIV brief argues that “lower courts need firm, clear direction” on this issue. “Without such clarity,” XIV insists, “States and federal courts will continue to struggle with race and gender equity and, in so doing, stymie citizen-led progress toward racial equality.”
Up until now, the Supreme Court has split the difference in its rulings on affirmative action policies.
The Gratz decision was issued in conjunction with Grutter v. Bollinger. Writing for the majority in Bollinger, Justice Sandra Day O’Connor ruled that it was permissible for the University of Michigan Law School to use race as one of many factors in a “narrowly tailored” fashion to achieve student diversity.
Since the high court is already taking up the constitutionality of race conscious admissions policies in Fisher v. University of Texas at Austin, now would be an opportune time to strike down preferential policies with an unambiguous ruling rooted in the principles of the 14th Amendment.