The Supreme Court Returns! | Center for Equal Opportunity

The Supreme Court is back this week, and on its docket are two cases the Center for Equal Opportunity helped persuade the Court to hear. This comes on the heels, of course, of the important role that CEO played in two important civil-rights cases from last term: Fisher v. University of Texas and Shelby County v. Holder. It’s been a busy time for us. But on to this term’s cases.

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The first case is Schuette v. By Any Means Necessary (BAMN). The full U.S. Court of Appeals for the Sixth Circuit held that Michigan’s Proposal 2 violates the U.S. Constitution’s Equal Protection Clause. Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan “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 Equal Protection Clause provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

The mind boggles: Proposal 2 not only does not violate the Equal Protection Clause, and is not only quite consistent with it, but is indeed nothing more than an elaboration on it!

CEO has been involved in this case for a long time, first in the lower courts and now in the Supreme Court. In fact, we helped get Proposal 2 passed in the first place, by releasing studies that documented how heavily racial and ethnic preferences were being used at Michigan public universities. We joined and helped write a brief urging the Court to take the case, and have joined and help write another brief now that it is on the Court’s docket.

For more on this case, you can read an earlier analysis I wrote for Minding the Campus, here.

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The second case for this term in which CEO has been involved is Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, which presents the question whether “disparate impact” causes of action may be brought under the Fair Housing Act. The Court has recognized but never decided this important issue – that is, whether a policy that is neutral by its terms, in its intent, and in its application can still be illegally discriminatory because it has disproportionate racial effects (for example, suppose a landlord won’t rent to people with felony convictions for drug-dealing).

There’s a new twist here: The Obama administration has issued formal regulations endorsing the disparate-impact approach, but there are a number of reasons why those regulations are entitled to little deference. First and foremost, the meaning of the statute is clear that only actual discrimination — “disparate treatment” — is banned. Further, the Fair Housing Act has been on the books for 45 years, and during that time the Executive Branch has sometimes used the disparate-impact approach and sometimes not. For example, President Reagan explicitly rejected the approach in signing major amendments to the Act, and his Justice Department argued against it in a brief to the Supreme Court; the Bushes didn’t think much of it, either. The Obama administration, on the other hand, is attempting to game the system here; it orchestrated a shady deal with the City of St. Paul to get it to withdraw a recent case presenting the same issue, and meanwhile has worked on promulgating those new regulations. “We were afraid we might lose disparate impact in the Supreme Court because there wasn’t a regulation,” said Sara Pratt, an official in the Department of Housing and Urban Development.

CEO has been involved with this issue for a long time, and we successfully urged the Court to take this case. And, now that we’ve succeeded, we helped write and joined another brief this summer that elaborates on why the Court should reject the “disparate impact” theory here.

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