New York Law School

Fair Housing, Equal Opportunity

The upcoming Supreme Court docket promises to settle two salient issues relevant to racial justice. The first, Mount Holly Gardens Citizens in Action, Inc. v. Township of Mt. Holly involves discrimination in the housing market. The second, Schuette v. Coalition to Defend Affirmative Action continues the discussion of diversity in the college admission process, in the context of a Michigan amendment that prohibits the consideration of race on collegiate applications.

On appeal is the decision of the U.S. Court of Appeals for the Third Circuit in Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mt. Holly. The Township appeals from a decision that reversed their grant of summary judgment and determined that the Mt. Holly Gardens citizens were entitled to a trial due to the disparate impact that a redevelopment plan had on minorities. The Mt. Holly Gardens citizens brought suit against the town of Mt. Holly after a redevelopment program displaced the majority of Gardens residents and offered them unaffordable alternatives. A census from 2000 revealed that 46.1% of Gardens residents were African American and 28.8% were Hispanic. The redevelopment plan to demolish the original Gardens was initiated by the town to aid a blighted community. Original Gardens units cost residents approximately $705 a month, the new units threatened to cost residents an additional $525 per month.

The minority residents argue that the redevelopment program disproportionately affected them as they represent three quarters of the Gardens population. One of the primary issues is whether a claim of disparate impact can be made under the Fair Housing Act if discriminatory intent is lacking. The other key issue is what method should be used to determine if a prima facie case of disparate impact exists. If the court votes to sustain disparate impact claims regardless of discriminatory intent, minorities will gain increased protection against housing discrimination.

Schuette v. Coalition to Defend Affirmative Action addresses the constitutionality of ballot initiatives that targeted communities. Schuette questions the constitutionality of an amendment to Michigan’s state constitution that prohibits the consideration of race and gender in college admissions, employment and other publicly funded institutions.

Considered by opponents as a repeal of the 1964 Civil Rights Act, the approved voter initiative strips any Michigan college or university of their ability to consider race as a factor in the college admissions process. Furthermore, the initiative amended Section 26 of Michigan’s state constitution to prohibit such considerations. The proposal of the amendment followed the Supreme Court’s decision to uphold affirmative action policies in Grutter v. Bollinger. Grutter held that Michigan universities could treat race as a plus factor in college admission decisions.

The initiative, Proposal 2, was approved by 58% of Michigan voters in 2006 through the process of political restructuring. The political restructuring doctrine, first established in Hunter v. Erickson and Washington v. Seattle School Dist. No.1, requires that strict scrutiny be applied to any laws that alter the political process for minorities and deprive them of equal access to the political system. Under Proposal 2, an applicant would be able to request that a Board of Regents consider personal factors such as legacy and athletic ability to bolster an admissions application. However, if a minority requested that their race be considered, under the amendment, their request would be denied and their only potential remedy would be to petition for a state constitutional amendment to reverse the approved policy.

Petitioner Bill Schuette argues that because the amendment does not create obstacles in equal treatment, it is not discriminatory on the basis of race and sex, and as such, the Equal Protection Clause is not applicable. Respondent Coalition to Defend Affirmative Action, argues that the amendment does in fact impose special burdens on the basis of race and sex because it specifically targets racially conscious admissions in public colleges and universities and deprives minorities from engaging in the same process as others during the college admissions process.

While the District Court upheld the initiative’s constitutionality, the Sixth Circuit reversed its decision, holding that “Proposal 2 reorders the political process in Michigan to place special burdens on minority interests.” The Supreme Court now grants certiorari to determine whether a ban on racial and sex considerations under Proposal 2 violates the Equal Protection Clause and the political restructuring doctrine.

While the initiative restricted the consideration of race in several areas including employment and public contracting, its detrimental effect on diversity within university admissions proved most problematic for critics of the amendment. Proposal 2 requires minorities to engage in additional measures, not required of other applicants, merely to have their voices heard. Social justice advocates refute claims that race based considerations offers preferential treatment to minorities; instead they argue that by enabling race to be considered as a part of a student’s application, minorities are offered additional opportunities in effort to counteract obstacles unique to people of color.

Policies that consider race as a factor in decision-making offer significant benefits to minorities. Affirmative action continues to be utilized by universities and employers nationwide to counteract the possibility of racial disparities in the selection process. However, without these considerations, Proposal 2 reduces diversity within universities as well as in the workplace. Under a broader lens, under Proposal 2, minorities will likely experience less social mobility due to limited access to necessary resources to financial success such as a college education and stable employment.

We look forward to monitoring the cases of the upcoming term and eagerly await decisions that may foster policies and discussions to improve race relations throughout our nation.

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