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USSCt: Michigan’s voter-approved affirmative action ban not unconstitutional as to university admissions policies

April 23rd, 2014  |  Cynthia L. Hackerott

In a 6-2 decision, the U.S. Supreme Court has ruled that Michigan’s voter-approved affirmative action ban is not unconstitutional as to university admissions policies, rejecting arguments that the ban violates equal protection by impermissibly burdening racial minorities. Although the case focused on the ban as it pertains to university admissions, the constitutional analysis could also be applicable to race-conscious decisions in state employment and the awarding of government contracts. Justice Kennedy wrote the plurality opinion, which was joined by Chief Justice Roberts and Justice Alito. The Chief Justice also filed a concurring opinion. Justice Scalia’s concurring opinion was joined by Justice Thomas. Justice Breyer also filed a separate concurrence. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg. Justice Kagan took no part in the consideration or decision of the case. (Schuette v Coalition to Defend Affirmative Action, April 22, 2014, to be reported at 97 EPD ¶45,054)

Initiative prompted by 2003 Supreme Court ruling. In November 2006, Michigan voters approved a ballot initiative, Proposal 2, to amend the state’s constitution to prohibit state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin. The initiative impacts the state’s use of affirmative action in a number of areas, including employment, education and government contracting. The Michigan measure was largely prompted by a June 2003 decision in which the U.S. Supreme Court, in a 5-4 vote, upheld the University of Michigan’s consideration of race in its law school admissions policy (Grutter v Bollinger, 84 EPD ¶41,415). However, on that same day in a 6-3 decision, the Court held that the university’s use of race as a factor in its undergraduate admissions policy violated the U.S. Constitution (Gratz v Bollinger, 84 EPD ¶41,416). In the Grutter and Gratz cases, white students who claimed they were qualified but denied admission challenged the university’s law school and undergraduate admissions systems on equal protection grounds. The Court found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but that the undergraduate policy was not.

Sixth Circuit decision. The High Court’s ruling reverses an en banc Sixth Circuit decision that the voter-approved ban on government affirmative action in the state of Michigan, as it applies to race-conscious admissions policies in public colleges and universities, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (96 EPD ¶44,674). The deeply divided Sixth Circuit ruled 8-7 that the measure violated equal protection under the political process doctrine because equal protection does not permit the kind of political restructuring that the measure affected.

Applying the U.S. Supreme Court’s decisions in Washington v Seattle Sch Dist No 1 (458 U.S. 457, 1982) and Hunter v Erickson (393 U.S. 385, 1969), the appeals court found that Proposal 2 unconstitutionally altered Michigan’s political structure by impermissibly burdening racial minorities. In the Sixth Circuit’s view, the Seattle and Hunter decisions clarified that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. “It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities,” according to the Sixth Circuit. These decisions provide the benchmark for “when the majority has not only won in the political process, but also rigged the game to reproduce its success indefinitely.” They require courts to apply strict scrutiny to enactments that change the governmental decision-making process for determinations with a racial focus, the appeals court asserted.

Using a two-part analysis derived from Seattle and Hunter, the Sixth Circuit found that the Proposal 2 deprived minority groups of equal protection because it: (1) it has a racial focus, targeting a program that “inures primarily to the benefit of the minority,” and (2) it reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.

Voters may decide. However, Justice Kennedy concluded that there is no authority in the U.S. Constitution or in Supreme Court precedent for the judiciary to set aside state laws that commit to the voters the determination of whether racial prefer­ences may be considered in governmental decisions, in particular with respect to school admissions.

Prior to addressing the issue presented, Justice Kennedy noted that the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged in this case. Rather, the issue before the court was whether, and in what manner, voters in states may choose to prohibit the consideration of such racial preferences. The decision by Michigan voters reflects the on-going national dialogue about such practices, he wrote.

Sixth Circuit misconstrued Seattle. As to that issue, the Sixth Circuit’s determination that Seattle controlled here erroneously extended Seattle’s holding to a case presenting quite different issues to reach a mistaken conclusion, Kennedy said.

Reviewing the relevant cases that preceded Seattle, specifically Hunter and Reitman v Mulkey (387 U.S. 369, 1967), the plurality opinion explained that those cases involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment to the California Constitution prohibiting state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California’s statutes, thus preventing them from leasing residen­tial property. In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in segregated housing that was substandard and dangerous.

In Seattle, after the school board adopted a mandatory busing pro­gram to alleviate racial isolation of minority students in local schools, voters passed a state initiative that barred busing to desegregate. The High Court found that the state initiative had the practical effect of removing the authority to address a racial problem from the ex­isting decisionmaking body, in such a way as to burden minority in­terests of busing advocates then had to seek relief from the state legislature, or from the statewide electorate. According to Justice Kennedy, Seattle, like Mulkey and Hunter, is best understood as a case in which the state action had the serious risk, if not purpose, of causing specific injuries on ac­count of race.

Difficulties with Seattle rationale. Criticizing Seattle, Kennedy asserted that it went well beyond the analysis needed to resolve the case, establishing a new and far reaching rationale that where a government policy inures primarily to the benefit of the minority and minorities consider the policy to be in their interest, then any state action that places effective decisionmaking authority over that policy at a different level of government is subject to strict scrutiny.

That rationale, however, has no support in precedent, and it raises serious equal protection concerns, according to Kennedy. Citing Shaw v Reno (509 U.S. 630, 1993), he asserted that, in cautioning against impermissible racial stereotypes, the Supreme Court has rejected the assumption that all individuals of the same race think alike, but that proposition would be a necessary beginning point were the Seattle formulation to control. Other risks of adopting this formulation would include: (1) defining individuals according to race, which would impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms, and (2) determining the policy realms in which groups defined by race had a political interest, which would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Such analysis would have to be undertaken with no clear legal standards or accepted sources to guide the judicial decision. Moreover, adoption of the Seattle formulation could affect any number of laws or decisions, such as tax policy or housing subsidies, resulting in the validation, rather than discouragement of, racial division would be validated.

Specific injury lacking. In any event, the principal flaw in the Sixth Circuit’s decision was that in this case, there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended, the plurality stated. The Sixth Circuit’s ruling also calls into question other states’ “long-settled rulings” on policies similar to Michigan’s, Kennedy noted.

By approving Proposal 2 and thereby amending their state constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. While individual liberty has constitutional protection, our constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here, Kennedy wrote. When hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts, but such circumstances — which were present in Mulkey, Hunter, and Seattle — were not present here. Instead, the issue here was whether voters may determine whether a policy of race-based preferences should be continued.

Concurring opinions. The Chief Justice’s concurring opinion took issue with certain contentions of the dissent. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate,” he wrote.

Justice Breyer agreed that the ban is consistent with the Equal Protection Clause, but for different reasons. Among other things, he noted that the constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. He also wrote that extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would create significant difficulties due to the nature of the administrative process. In addition, he noted that the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process.

Justice Scalia wrote that ban likely does not pass muster under the political process doctrine, but that the cases establishing the political process doctrine should be overturned because they are “patently atextual, unadministrable,” and contrary to the High Court’s traditional equal protection jurisprudence. The question here, asserted Scalia, is the same as in every case in which neutral state action is said to deny equal protection on account of race: whether the challenged action reflects a racially discriminatory purpose. In Scalia’s view, there was no such purpose here.

Dissent. In her dissent, Justice Sotomayor wrote that the plurality’s decision fundamentally misunderstands the nature of the injustice worked by the voter-approved ban, and “eviscerates an important strand of [the Court’s] equal protection jurisprudence.”

“The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities,” she wrote.

“The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success,” she stated. But the plurality decision “discards that doctrine without good reason” and permits “the majority [of the voters in Michigan] to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan.”

According to Sotomayor, “experts agree and as research shows” that race-sensitive admissions policies have made a difference in achieving educational diversity, and she asserted that the elimination of such policies has been harmful to minority students in Michigan and other states that have adopted similar bans.

“Without checks, democratically approved legislation can oppress minority groups,” she maintained, adding that judges “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Similar ballot measures in other states. The Michigan initiative is similar to measures passed by voters in California (1996), Washington state (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012). Colorado, in contrast, became the first state to reject an anti-affirmative action ballot measure in the November 2008 election.

Other state bans. Affirmative action by the state has been banned to varying degrees in other states by means other than ballot initiatives. A New Hampshire law, which took effect in 2012, bans affirmative action in college admissions and employment, but does not address government contracting. In Florida, Executive Order 99-281 (1999) prohibits the use of affirmative action in state schools’ admissions policies, as well as in government employment and state contracting. Nevertheless, Florida has implemented a program designed to increase diversity in higher education without taking race into account. The “Talented Twenty” program guarantees all high school students who finish in the top 20 percent of their class acceptance to one of Florida’s public colleges and universities.

Recent Fisher decision. In 1996, the Fifth Circuit held, in Hopwood v Texas, that the University of Texas School of Law violated the Fourteenth Amendment by using race as a factor in deciding which applicants to admit. The Supreme Court declined to review that case. In 1997, Texas enacted the Top Ten Percent Law which mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university.

In 2003 after the Supreme Court issued its Grutter ruling which abrogated Hopwood, Texas added the consideration of race among many factors to fill remaining slots at public universities. This practice was challenged in Fisher v University of Texas at Austin, a case addressed by the Supreme Court in June 2013 (97 EPD ¶44,850). There, the High Court ruled that the Fifth Circuit, in applying the narrow tailoring aspect of strict scrutiny as articulated in Grutter and Regents of Univ of Cal v Bakke (17 EPD ¶8402, 1978), erred in giving deference to the University of Texas at Austin’s assertion that the university’s way of considering race in its admissions process is constitutionally permissible. In the 7-1 decision, the majority held that strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. Thus, the Court remanded the case back to the Fifth Circuit with instructions to assess whether the university has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. In November 2013, the Fifth Circuit court heard oral arguments addressing the issues on remand.

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