Epstein in SCOTUSblog on Schuette v. Coalition to Defend Affirmative Action

Schuette v. Coalition to Defend Affirmative Action: The intellectual confusion that surrounds affirmative action today
Richard A. Epstein
SCOTUSblog
September 9, 2013

Schuette v. Coalition to Defend Affirmative Action, which is now before the United States Supreme Court, illustrates all the treacherous crosscurrents in modern equal protection law.  The case involves a challenge to Michigan’s Proposal 2, which, on its face, amends the Michigan constitution by calling for an everything-blind standard that would effectively end affirmative action programs in the public space.  Its key provision reads:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district 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.

The language of this state constitutional provision of course tracks the language found in both Title II and Title VII of the Civil Rights Act of 1964, which deal with public accommodations and employment relations, respectively.  Consequently, the successful challenge in the lower court to this Proposal, at the very least, has to raise eyebrows. It is worth discussing some of the serious historical and analytical issues that this perplexing case raises.

Faculty: 
Richard A. Epstein