Michigan is not the only US state to maintain some type of ban on race-conscious affirmative action policies. In 1996 California voters approved an amendment to the state’s constitution that prohibited public institutions from using affirmative action policies. Under Proposition 209, state employment, contracting and educational institutions cannot base decisions on any of the enumerated categories found in the federal Civil Rights Act of 1964, such as race. This prohibition against affirmative action has faced unsuccessful challenges in the state legislature and in state and federal courts. The Supreme Court of California upheld the ban in August 2010, and California Governor Jerry Brown vetoed a bill in October 2011 that sought to allow the use of race as one of several demographic factors for consideration in the higher education admissions process. In April 2012 the US Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a challenge to Proposition 209 and upheld the ban. Washington state’s legislature passed a law similar to California’s Proposition 209 governing affirmative action in that state.

Texas limited the use of demographic factors such as race in its higher education admissions policies by enacting the Top 10 Percent Plan in 1997. The plan calls for the automatic admission of students in the top ten percent of their graduating class to state universities, and allows admissions officers to consider “colorblind” factors when considering whether to admit those students not in the top ten percent. The Top 10 Percent Plan played a pivotal role in the recent Fisher v. University of Texas opinion (will change this sentence based upon Mike’s section). Florida Governor Jeb Bush laid the groundwork for a similar plan in Florida by issuing Executive Order 99-281 [PDF] in 1999, which prohibits the use of affirmative action by Florida’s state institutions. Florida’s Talented Twenty [PDF] program admits the top twenty percent of the high school class, and denies the use of race as an admissions factor for other students.

The latest round of affirmative action bans mimic the California model. Nebraska voters banned affirmative action in November 2008, by prohibiting discrimination and preferential treatment on the basis of race and sex. Arizona amended its state constitution in November 2010 to likewise prohibit affirmative action. New Hampshire’s legislature passed a law prohibiting the use of affirmative action in higher education in January 2012. Oklahoma voters passed a constitutional amendment in 2012, in part because they believed affirmative action programs were no longer necessary. It remains to be seen whether the Schuette opinion will encourage other states to pass affirmative action bans.