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Is U.S. Looking at a ‘New Kind of Separate But Equal?

English: The Supreme Court of the United State...

The U.S. could be staring “a new kind of separate but equal” in the face as the Supreme Court is set to take on a Michigan-based affirmative action case and prepares to hand down a Texas-based decision also dealing with the controversial practice. So says attorney George Washington.

The two cases now before the Court; Fisher v. University of Texas at Austin, 11-345, and Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, 12-682, each deal with academic institutions and their admissions policies.

The Sixth Circuit Court of Appeals struck down a Michigan ban on racially-based preferential treatment in education and in the workplace, leading to the case before the Supreme Court.

Washington is lead counsel in the Michigan-based “Schuette” case, although he said there are national implications. Despite what he acknowledged was a conservative Court and what may seem like an uphill battle, Washington said many affirmative action supporters welcome the case.

There are no guarantees the constitution of the court will ever be more conducive to strike down anti-affirmative action laws, he says. And, more importantly, the U.S. has a growing number of “minorities,” and the professional landscape should mirror those changes now, not later.

“We’ve got to change the public climate,” he said. “We’ve got to start fighting.”

The Supreme Court could make a decision on “Fisher” any day, and although the cases are a little different and the one would not directly represent the other, Washington said there is at least one conclusion that can be drawn as a result of the court taking the Michigan case: it is unlikely affirmative action as a whole will be struck down. A “Fisher” decision that broadly eliminates affirmative action would make the Michigan case, not yet being argued in court, moot. He said although it not a guarantee, it is less likely the Court would have taken the case if they planned to broadly eliminate affirmative action.


In the Texas case, the crux of the matter lies with parsing the University of Texas at Austin’s admission policy with respect how it handles admissions for about a quarter of the students. The school grants admission to top students in each of Texas high schools, naturally creating a diverse population.

The question before the Court, Washington explained, is how affirmative action policies can, or cannot, be used for the remaining applicants.

However, what Washington said he hopes to accomplish while representing the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, also known as BAMN, is to eliminate laws like Michigan’s ban on university admissions policies that grant preferential treatment for race, gender and ethnicity. He said he is hopeful for a broad ruling that would eliminate other states from enacting similar legislation.

“These are laws designed to eliminate affirmative action,” he said referencing initiatives in other states like California, Nebraska, Arizona and Oklahoma.

BAMN is approaching the case with a two-fold strategy.

First, he said school admission policies are not written in stone. They often focus on grades and coursework in high school, but, in fact, schools can admit students by making exceptions to those criteria and often they give preference for the poor, those who live in rural areas, in-state students, veterans, and even some more controversial factors like admitting the children of alumni or substantial donors.

He said under the 14th Amendment, universities should be able to provide the same opportunity to stray from the test-score system for black and Latino students with the same leeway.

Second, he said the ban is a “special law” granting those who feel grieved by the racially driven admissions to bring a lawsuit to court, when others would not have that luxury. If a prospective student feels they were wronged by one of the other preferential criteria, they can complain, but they cannot bring suit, he said. He likened the discrepancy to the “black codes” that the 14th Amendment was designed to eliminate.

However, the Michigan Attorney General’s Office is arguing the ban is in fact in-line with the 14th Amendment and is indeed working toward equality. In the writ of certiorari filed with the Supreme Court, the petitioners lay the groundwork for their argument.

“It is exceedingly odd to say that a statute which bars a state from ‘discriminating on the basis of race’ violates the Equal Protection Clause because it discriminates on the basis of race and sex.”

As cited in the writ: Article 1, § 26(1) of Michigan’s 1963 Constitution states, “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 writ calls into question the Sixth Circuit’s ruling essentially stating the state “must engage in affirmative action.”

The petition also cited that the referendum for the ban was supported by a 58% majority.

Oral arguments are expected to begin in the fall.

Dan Sabbatino is an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over a the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number of Capital Region publications including The Legislative Gazette, where he currently serves as assistant editor.


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