audio_analysisAffirmative action was back before the Supreme Court on Oct. 15  In 2006, a majority of the Michigan electorate voted to approve Proposal 2, a referendum that amended the state constitution to eliminate race-based considerations in admission to the state’s universities.  Such considerations are not only constitutional based on the federal Constitution, but have always been the decision of the Board of Regents.

The case centers around the “political process” theory, a doctrine holding that it is unconstitutional to make it more difficult for racial minorities to get protections through the political process than it is for other groups.  Under this doctrine, the Supreme Court has struck down a number of laws and ballot initiatives that removed decisions about policies protecting racial minorities from the regular decision-making body and placed them at a higher political level.  For example, the Court in Hunter v. Erickson in 1962 said that the city of Akron, Ohio could not amend its charter to mandate that any fair housing ordinance must be put to a referendum.  Likewise, in 1982 the Court held in Washington v. Seattle School District that it was unconstitutional for the state to decide by referendum that school busing could not be used for the purpose of desegregation.  Both precedents played an important role during oral argument, as one question that loomed before the Court was whether upholding Proposal 2 would mean overruling past decisions.

If the Supreme Court does uphold Proposal 2, it will not only chip away at public universities’ ability to institute constitutional affirmative action programs, it will also severely obstruct supporters of racial diversity seeking recourse through the political process.  As Justice Sotomayor said in oral arguments, it will continue to “change the game posts” for minority students.