By: Eric D. Coleman, Junior Editor
When it comes to affirmative action, the world seems to be sharply divided. You are either a proponent or an opponent, and there does not seem to be much of a middle ground. However, many on either side don’t seem satisfied with its current state. Today, the debate has made its way back to the forefront in two cases, one of which has been decided by the Sixth Circuit, and another which is before the Supreme Court. The first is Coalition to Defend Affirmative Action v. Regents of the University of Michigan. In Coalition to Defend Affirmative Action a coalition of interest groups and individuals, which included the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary, brought suit against a list of individuals and entities, which included the sitting Michigan governor, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The suit “alleged that provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law.” Proposal 2 went into effect in December of 2006 and brought substantial changes to the admissions procedures in place at public institutions across Michigan. The amendment eliminated “race, sex, color, ethnicity, or national origin” as factors for consideration in an individual’s admission decision. Furthermore, this prohibition was “entrenched at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue – and only this issue – without repeal or modification of article I, section 26 of the Michigan Constitution.”
Coalition to Defend was most recently decided on appeal to the Sixth Circuit in favor of Coalition. However, the Court did not employ a traditional Equal Protection analysis. The Court first analyzed Proposal 2 under the political-process doctrine. This doctrine states that under the Equal Protection Clause no racial minority shall be forced to “surmount more formidable obstacles than those faced by other groups to achieve their political objectives.” Moreover, “a state may not ‘allocate [ ] governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decision-making process.’ ” The Court held that Proposal 2 fails under the political-process doctrine and therefore must survive strict scrutiny; however, because Michigan identified no compelling state interests Proposal 2 was unconstitutional.
The second case currently at the forefront of the affirmative action debate is Fisher v. Regents of the University of Texas. Abigail Fisher and Rachel Michalewicz, two Texas residents, brought suit against the University of Texas (UT) after they were denied admission for the 20080-2009 school year. Their suit charges that the UT admissions process discriminated against them on the basis of race, and that such discrimination was in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.
UT’s admissions policy is complex and must be understood in order to understand the case. The university first divides its total applicant pool into three pools: (1) Texas residents, (2) non-Texas residents, and (3) international students. Students only compete within their respective applicant pool. UT implements two administrative policies. One is the “Top Ten Percent Law.” This policy calls for UT to automatically admit any Texas high school senior who graduated in the top ten percent of their respective high school class. The policy is in place at all Texas state universities. Those Texas residents who are not automatically admitted under the Top Ten Percent Law compete for admission in the remaining “resident” slots. For these slots, the admissions committee implements a Grutter-like policy in which the committee takes into account an applicant’s (non-automatic) Academic and Personal Achievement Indices. The Personal Achievement Index takes into account the applicants race; however, it is considered holistically with other elements to achieve “the fullest possible understanding of the student as a person and to place his or her achievements in context.”
Fisher and Michalewicz argue that the University’s race-conscious admissions program is over-extensive and unjustifiable. They argue that (1) UT has gone beyond a mere interest in diversity for education’s sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve “racial balancing”; (2) the University has not given adequate consideration to available “race-neutral” alternatives, particularly percentage plans like the Top Ten Percent Law; and (3) UT’s minority enrollment under the Top Ten Percent Law already surpassed critical mass, such that the additional (and allegedly “minimal”) increase in diversity achieved through UT’s Grutter-like policy does not justify its use of race-conscious measures. The Fifth Circuit upheld the university’s policy stating that “the admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored – procedures in some respects superior to the Grutter plan because the University does not keep a running tally of underrepresented minority representation during the admissions process.” As such, the UT admissions policy is safe for now. Yet, the Supreme Court is soon to decide the fate of UT’s admissions policies and of affirmative action as we know it.
How will the Supreme Court rule in Fisher?
Much has changed since the Supreme Court was last faced with a decision on affirmative action in Grutter. Most importantly Justice Sandra Day O’Conner is no longer a sitting member of the court. Justice O’Conner’s absence from the Court may bring an end to the “critical mass” analysis employed in Grutter. In Grutter Justice O’Conner was the “swing justice,” in a 5-4 decision upholding the “plus” system in place for admission to the University of Michigan Law School. In her place, Justice Anthony Kennedy vote is likely to be the “swing” vote. He is likely to be less sympathetic to affirmative action. For example, in Grutter Justice Kennedy dissented from the majority opining that that the majority “refused to be faithful to the settled principle of strict review designed to reflect [important] concerns.” From this standpoint, it seems as though the fate of Grutter based affirmative action programs are in the hands of Justice Kennedy. However, despite never having voted to uphold an affirmative action program, Justice Kennedy has “consistently endorsed the notion that a university’s interest in diversity can, in some instances be compelling.” As such, it is likely that the foundation of Grutter will remain intact; but the Court will likely “cabin the compelling interest to the pursuit of student body diversity, as opposed to diversity in the classroom.”  This is necessary in order to prevent universities from using race as a factor in admissions indefinitely. 
 Coalition to Defend Affirmative Action, 701 F.3d 466 at 472.
 Coalition to Defend Affirmative Action, supra note 157, at 472.
 Id. at 489.
 Id. at 483.
 Coalition to Defend Affirmative Action, 701 F.3d at 485 (citing Washington v. Seattle School District No. 1, 485 U.S. 457, 469-70).
 Id. at 485.
 Fisher v. Uni. of Tex. At Austin, 631 F.3d 213 (5th Cir. 2011)(S. Ct. argued Oct. 11, 2012).
 Id. at 227.
 Id. at 224. The Top Ten Percent Law was enacted in 1997.
 Id. at 235.
 Id. at 247.
 Grutter, 539 U.S. 306.
 Jonathan W. Rash, Affirmative action on Life Support: Fisher v. University of Texas at Austin and the End of Not-So-Strict Scrutiny, 8 Duke J. Const. L. & Pub. Pol’y Sidebar 25, 43 (2012).
 Grutter, 539 U.S. 306.
 Rash, supra note 196, at 42 n. 133. See, e.g., Grutter, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 783 (2007) (Kennedy, J., concurring).
 Id. (“To hold otherwise would permit a university to use race in admissions indefinitely – until educators [can] certif[y] that the elusive critical mass has finally been attained, not merely in the student body generally, but major-by-major and classroom-by-classroom.”).