The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Tuesday, October 15, 2013

Supreme Court’s Michigan affirmative-action case: Liberals deserve to lose Schuette v. Coalition to Defend Affirmative Action

Lucky Elena Kagan. She gets to sit out this year’s affirmative action case at the Supreme Court, probably because she worked on a related matter when she was solicitor general. Part of me wishes I could skip it, too.  This is a case that liberals will lose, and probably deserve to lose.


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How do we apply the Sixth Circuit's reasoning to laws that ban racial segregation by the government?

It is important to remember that Brown v. Board of Education, 347 U.S. 483 (1954), did not sweep away all racial segregation nationwide. Brown only overruled Plessy v. Ferguson, 163 U.S. 537 (1896) to the extent it applied to public education. 347 U.S. at 495. Under current Supreme Court precedent, the 14th Amendment permits the state to racially segregate other facilities like parks and rail cars. Any lower court hearing such a challenge must follow Plessy, because the Supreme Court never struck down racial segregation as a violation of the 1r4th Amendment outside the public education context.

Thus, if a state banned racially segregated streetcars in local public transportation, it would require segregationists to appeal to at least the legislature (if not the state's constitutional amendment process), instead of the local government to obtain their preference for racially segregated streetcars. And under the Sixth Circuit's reasoning, this restructures the political process to disfavor segregationists from obtaining a racial preference still permitted by the 14th Amendment. (Again, Brown is only applicable to public education.) And as such, a state banning especially segregated street cars in local public transportation violates equal protection under Sixth Circuit precedent.

Posted by: Michael Ejercito | Oct 15, 2013 6:22:02 PM