The Overlooked Implications of the Michigan Affirmative Action Decision

April 24, 2014

On April 22, 2014 the Supreme Court handed down a 6-2 decision (Justice Kagan recused) upholding Michigan’s amendment to the state constitution known as Section 26.    Voters approved Section 26 in 2006 prohibiting state entities from granting race-based preferences in the operation of state universities or public employment.  The decision is widely viewed as a setback to supporters of Affirmative Action.  Currently, there are 10 states that have measures in force similar to Michigan’s Section 26. The case is officially labelled Schuette v. Coalition to Defend Affirmative Action.

Writing for the majority of the Court, Justice Kennedy said, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”  In other words, let the voting public decide whether or not race based preferences should be prohibited or not.

Justice Sotomayor in dissent, however, points to the impact of this “hands off” approach by the Court.  She points out that since 2006 when Section 26 went into effect, minority enrollment at Michigan’s public colleges and universities has declined roughly 25%, from 12.15% in 2005 to 9.54% in 2012.”

The decision’s primary focus is on the University of Michigan’s admissions process and consequently most of the reaction has been in the higher education domain.  But what seems largely forgotten, however, is that the ban extends to public employment as well.  And as Human Resources practitioners, we have cause for concern as well.

What if more states adopt provisions similar to Section 26?  That would mean that more and more state and municipal agencies would not be allowed to consider race in their employment practices.  Extending the hypothetical would most certainly result in a perpetuation of underrepresentation of minorities in the workplace as well as disproportionately high unemployment as compared to whites.  Said differently, the impact that Justice Sotomayor points out at Michigan would be replicated in the workplace.

The history of discrimination and preferences in employment is pretty clear.   Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national origin, gender, and religion.  Subsequent legislation extended protections on the basis of age and disability.  Affirmative action has its roots in Executive Order 11246 signed into law by President Johnson in 1965.  Executive Orders generally apply to federal contractors.  President Obama recently signed an Executive Order directing federal contractors to pay a $10.10 minimum wage.

Equal Opportunity (prohibiting discrimination) and Affirmative Action (preferences based on race or other protected status) are not the same thing.  The Court’s decision in Schuette v. Coalition to Defend Affirmative Action seems to validate the distinction.  But, the decision notwithstanding, we must as HR practitioners continue to advocate for employees, present and future, not only to ensure that we have the right talent but to ensure that our organization is doing the right thing.

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