Have We Reached Grutter's "Logical End Point?" The Fight Over State Law Bans on Preferential Treatment Programs and the Future of Affirmative Action in the United States

I. INTRODUCTIONPerhaps Chief Justice Roberts was correct when he remarked that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race."1 The use of race in admissions decisions to undergraduate and graduate institutions is a subject that has long roiled the Supreme Court.2 Most affirmative action challenges have focused on attacking affirmative action programs that are already in place.3 In November 2012, the Sixth Circuit addressed an ironic affirmative action question: whether a state that places a ban on the use of affirmative action programs violates the Equal Protection Clause of the Fourteenth Amendment.4 The Sixth Circuit's decision invalidating Michigan's ban on affirmative action has split with the Ninth Circuit's decision in Coalition for Economic Equity v. Wilson, which addressed the same question but came to the opposite conclusion.5This Comment argues that the Supreme Court should reverse the Sixth Circuit's decision in Coalition to Defend Affirmative Action.6 The Court should also hold that the Hunter-Seattle doctrine was not triggered under the factual circumstances at issue in the case before the Sixth Circuit where a statewide referendum repealed existing affirmative action programs.7 Further, the Court should adopt the Ninth Circuit's reasoning in Wilson and analyze the ban at issue in Coalition to Defend Affirmative Action using the more expansive traditional approach to equal protection.8 Part II examines the nature of permissible affirmative action plans under current Supreme Court doctrine and explains the circuit split.9 Part III argues that the Sixth Circuit incorrectly found Michigan's initiative banning affirmative action unconstitutional by applying the Hunter-Seattle test.10 Part IV offers a policy argument for abandonment of the Hunter-Seattle test.11 Part V concludes that affirmative action bans are consistent with the Equal Protection Clause and questions the continued relevance of the Hunter- Seattle doctrine.12II. BACKGROUNDA. Permissible Use of Race in Affirmative Action Programs Under Bakke, Grutter, and GratzIn the education context, affirmative action programs provide an advantage to minority applicants in the admissions process.13 Affirmative action programs are recognized racial classifications that presumptively violate the Equal Protection Clause.14 Under the Equal Protection Clause, racial classifications are subject to strict scrutiny and must be narrowly tailored to advance a compelling state interest.15 Despite the invalidity of affirmative action programs, the Supreme Court permits them as a remedy for past discrimination.16 Consequently, affirmative action programs are an exception to the general rule of equality required by the Equal Protection Clause.17Though the Supreme Court allows affirmative action programs, there are well-defined limitations on how such programs may operate.18 First, race may only be considered as a "plus" in conjunction with other characteristics in a student's file.19 This means that race cannot be the sole factor determining admission.20 This requirement ensures that all applicants receive comprehensive review.21 In defining the contours of permissible affirmative action programs, the Court prohibits procedures that create quotas for minority applicants.22One of the more important limitations on affirmative action programs is that they must be limited in time.23 In Grutter v. Bollinger, the Court approved the law school's use of race but stressed that the Fourteenth Amendment requires elimination of policies, like affirmative action, that embody racial classifications.24 This is because all racial classifications are presumptively invalid.25 The Court noted that California, Florida, and Washington have banned affirmative action in the same way that Michigan did with Proposal 2 in Coalition to Defend Affirmative Action.26 The Court's approval of state-level affirmative action bans in Grutter suggests consistency with the Court's policy of eliminating racial classifications and reinforces the necessity of an end to those programs. …