(Un)Civil Rights: Are bans on affirmative action unconstitutional?

February 29, 2012

Civil Rights Theme

(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history.  Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)

For the first week’s post on Texas’s redistricting lawsuit, click here.

For the second week’s post on Shelby County, Alabama’s constitutional challenge to Section 5, click here.

For the third week’s post on Texas’s colorblindness, click here.

For the fourth week’s post on Fisher v. University of Texas at Austin, click here.

Last week, I discussed affirmative action in higher education admissions and its fight for survival before the Supreme Court.

But while some are struggling to defend the constitutionality of the practice, others are going on the offensive by attacking bans on affirmative action in school admissions as unconstitutional.

That ban is Article I, Section 31 of California’s state constitution, added in 1996 by ballot initiative, which prohibits the state from discriminating against, or “granting preferential treatment to” any individual or group on the basis of “race, sex, color, ethnicity, or national origin.”

The challenge to the ban’s constitutionality is Coalition to Defend Affirmative Action v. Brown, for which oral arguments were heard on February 13 (the lower court’s opinion is here).

Nonetheless, this challenge to Section 31 isn’t the first.

Almost immediately after Section 31 was added, several minority and civil rights groups filed suit, arguing that the new amendment was unconstitutional under the Equal Protection clause.

This challenge, decided in Coalition for Economic Equity v. Wilson, however, was unsuccessful.

The progenitors of this most recent challenge are looking to differentiate themselves from the challengers in Wilson, lest their challenge suffer the same fate.

They are attempting to do this by making an “as applied” challenge to Section 31, where Wilson’s challenge was a “facial” challenge.

In other words, where the challengers in Wilson claimed Section 31 was unconstitutional outright, Brown’s challengers are claiming that the amendment is unconstitutional as applied to the University of California (UC) Regents’ student admission policies.

These policies currently entail consideration of factors such as “standardized test scores and a weighted grade point average that favors students who have taken honors or advanced placement classes.”

The challengers further argue that these calculations discriminate against minority students, who often come from poorer schools that lack options to enroll in honors or advanced placement classes.

Thus, the challengers assert, UC’s admissions policies unfairly discriminate against racial minorities in a way that could only be counterbalanced by affirmative action factors, which Section 31 prohibits.

While this is certainly a new approach to the argument (and probably a fair observation), the reasoning employed is probably a bit too attenuated for the court to adopt, and this challenge will likely meet the same fate as that in Wilson.

Interestingly, though, the Ninth Circuit’s stance on the issue doesn’t seem to be uniform across the rest of the circuits.

The Sixth Circuit Court of Appeals’ July 1, 2011 decision Coalition to Defend Affirmative Action v. Regents of the University of Michigan voided a Michigan state constitutional amendment almost identical to California’s Section 31.

Although there is still the chance that the Ninth Circuit will look to the more recently decided Sixth Circuit decision for guidance in Brown, it is much more likely that it will apply Wilson, a case decided within its own circuit.

Even in the unlikely event that Section 31 is overturned, though, the amendment’s opponents won’t be able to find much relief in their victory.

As discussed last week, the Supreme Court will consider Fisher v. University of Texas at Austin in its next term, a case that challenges the very constitutionality of all race-conscious admissions policies.

I predicted in that post that, given the change in the Justices since the previous Supreme Court decision in 2003 upholding such policies, affirmative action will likely meet its end when SCOTUS rules in Fisher.

Consequently, even if affirmative action proponents score a victory in California, the Supreme Court’s ruling in Fisher will effectively reinstate Section 31 not only in California, but nationwide.