Sua Sponte: NSBA and other education groups urge the U.S. Supreme Court to strike down Michigan law banning consideration of race and other classifications in public education

The National School Boards Association (NSBA), along with the American Association of School Administrators, the Horace Mann League, and the National Association of Elementary School Principals, has filed an amici brief in Schuette v. Coalition to Defend Affirmative Action, Docket No. 12-682.  At issue is the en banc decision of the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) in Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich. that Michigan’s law prohibiting the consideration of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting is unconstitutional.  NSBA’s brief urges that the Sixth Circuit’s decision be upheld.  The State of Michigan is asking the U.S. Supreme Court to overturn the decision.

According to the Legal Clips summary of the Sixth Circuit decision:

In an 8-7 split en banc decision, the U.S. Court of Appeals for the Sixth Circuit has ruled that the provision in Michigan’s Proposal 2, a voter-approved ballot initiative amending the state constitution to prohibit public colleges and universities from using race-conscious admissions policies, violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  The majority found that Proposal 2 barred public college and university boards or their admissions committees from considering race, “undermin[ing] the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”  The majority concluded that Proposal 2 “violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines.”

The amici brief makes three arguments why the law violates the Fourteenth Amendment of the U.S. Constitution’s Equal Protection Clause.  First, it contends: “Michigan’s primary and secondary public schools will be prevented from taking research-based, otherwise constitutional measures to meet the needs of all students for a diverse learning environment.”

Second, the brief charges:

Section 26 directly undermines the ability of public schools to educate all students to be successful participants in a global society. Under this amendment public schools will be severely restricted in creating and maintaining diverse student enrollments that serve the educational needs of all students. …. The amendment will also call into question other necessarily race-conscious actions by public schools that target the academic needs of certain subgroups of students.

Lastly, the brief argues: “This amendment wears a guise of non-discrimination, but in reality threatens to limit the discretion of school leaders that this Court has clearly stated is available to school boards under the Equal Protection Clause.”

In NSBA’s press release announcing filing of the brief, NSBA Executive Director Thomas J. Gentzel said. “This amendment to the Michigan Constitution is being billed as an anti-discriminatory measure, but it would have the reverse effect by essentially cutting off local school officials’ abilities to implement research-based programs that benefit student learning.”  He added, “It also would effectively end programs that target the unique academic needs of certain subgroups of students.”

“Research shows that all students achieve at higher levels when they learn with peers in diverse settings,” said NSBA General Counsel Francisco M. Negrón, Jr.  “This amendment would restrict public schools from using even narrowly tailored, race-conscious methods to implement the educational benefits of voluntary diversity policies, hindering schools’ ability to provide all students with a key component of the 21st Century skills they need to compete in the global workforce.”

The brief was written by Patricia J. Whitten, Jennifer A. Smith, and Jacqueline Wernz of Franczek Radelet PC, Chicago, IL., and Francisco M. Negrón, Jr., NSBA General Counsel.

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