Schuette v. Coalition to Defend Affirmative Action and the Failed Attempt to Square a Circle

19 Pages Posted: 27 Apr 2014

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Date Written: 2013


The question presented to the Supreme Court in Schuette v. Coalition to Defend Affirmative Action is, “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” Given that the Supreme Court barely tolerates affirmative action preferences, it is exceedingly unlikely to endorse a lower court ruling that overturns a state ban on them.

Nevertheless, it is worth examining the reasoning of the Sixth Circuit's decision in Schuette, because it exemplifies many interesting nuances regarding the debate over the constitutionality of affirmative action preferences, nuances that were mostly ignored in the dissenting opinions. Judge Cole's opinion demonstrates (1) that despite decades of jurisprudence permitting state university affirmative action preferences only if used for “diversity” purposes, its legal advocates, including federal judges, still act under the assumption that the purpose of preferences is to benefit students who are members of underrepresented minority groups; (2) some affirmative action advocates cling to an obsolete model of American politics that posits that African Americans and members of other minority groups lack any substantial political power; (3) some affirmative action advocates tend to discuss the issue as if the only groups affected are African Americans and whites, neglecting both that Asian Americans tend to be harmed by university admissions' preferences, and that African Americans are a shrinking minority of those eligible for preferences, with Hispanics a significantly larger and faster-growing demographic group; and (4) affirmative action advocates tend to be dismissive of the claim that race is different and more problematic than other criteria that university officials may consider in admissions, for moral, historical, and practical reasons. While not unassailable, these reasons seem to provide a significant non-arbitrary rationale for state voters to ban official reliance on race and ethnicity.

Keywords: constitutional amendment, referendum, public education, state universities, preferential treatment, legacy preference, underrepresented groups, minorities, race, ethnicity, Fourteenth Amendment, equal protection, political process, Grutter v. Bollinger, Gratz v. University of Michigan, Sixth Circuit

JEL Classification: J78, K10

Suggested Citation

Bernstein, David Eliot, Schuette v. Coalition to Defend Affirmative Action and the Failed Attempt to Square a Circle (2013). NYU Journal of Law & Liberty, Vol. 8, No. 1, pp. 210-227, 2013, George Mason Law & Economics Research Paper No. 14-12, Available at SSRN:

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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