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Colorblind Law

May 5, 2014, Vol. 19, No. 32 • By TERRY EASTLAND
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"As Justice Harlan observed over a century ago, ‘our Constitution is colorblind and neither knows nor tolerates classes among citizens.’ .  .  . The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.”

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That’s how Justice Antonin Scalia concluded his opinion last week in Schuette v. Coalition to Defend Affirmative Action. The quotation comes from the famous, solitary dissent by Justice John Marshall Harlan in the 1896 case of Plessy v. Ferguson, which sustained a Louisiana statute requiring racial segregation on passenger trains.  

The Court has never held (as Harlan would have in Plessy) that the U.S. Constitution is “colorblind.” But in Schuette it refused to nullify Michigan voters’ decision to make their state’s governing charter color-blind by approving Proposal 2 in 2006. That is the welcome, essential point of Schuette

Proposal 2 was a response to the Michigan affirmative action cases decided in 2003, in which the Court constrained but did not eliminate the use of race in college admissions. Proposal 2 states that Michigan and its agencies “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting.” Note that the amendment applies broadly, beyond education, to public employment and contracting.

A group defending race-based affirmative action challenged the law, losing in the district court but winning on appeal in the Sixth Circuit by a vote of 8-to-7. Invoking Supreme Court precedents of dubious force, the appeals court said that Proposal 2 violated the Fourteenth Amendment’s equal protection clause by reordering the political process in a way that places “special burdens” on minority interests.

Now the Supreme Court has deemed otherwise, in a ruling that generated five opinions. Justice Anthony Kennedy, author of the lead opinion joined by Chief Justice John Roberts and Justice Samuel Alito, wrote that the Sixth Circuit’s reading of the precedents “must be rejected” since it “would contradict central equal protection principles”—by indulging the use of “impermissible racial stereotypes,” such as that members of the same racial group think alike and share the same political and legislative interests. Justice Scalia would have overruled the precedents, which he declared “patently atextual, unadministrable, and contrary to this Court’s traditional equal-protection jurisprudence.” 

Justice Sonia Sotomayor basically agreed with the Sixth Circuit in a lengthy dissent. The majority of Michigan voters, she wrote, had reconfigured “the existing political process .  .  . in a manner that burdened racial minorities,” such that supporters of race-preferential admissions (she calls them “racially sensitive” admissions) must amend the state constitution to overturn Proposal 2 before they can, in accord with “long established process,” lobby admissions directors and university trustees. But with Justice Elena Kagan recused, presumably because she worked on Schuette when she was solicitor general, only one other justice, Ruth Bader Ginsburg, joined Sotomayor’s opinion, which actually accused the Proposal 2 majority of racial discrimination.

Kennedy’s bottom line—that nothing in the Constitution or the Court’s precedents empowers the judiciary to remove from Michigan voters the ability to decide whether to continue racial preferences—won the agreement of Justice Scalia in a concurring opinion joined by Justice Clarence Thomas. And Justice Stephen Breyer, who also voted to uphold Proposal 2, wrote separately, observing that “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates” about the merits of “race-conscious programs.”

Thus, the final tally was 6-to-2. And it would be a mistake to think that Schuette is narrow in its reach. For while the justices’ opinions emphasized admissions in higher education, only Justice Breyer explicitly limited his opinion to such admissions. For the other five justices in the majority, the ruling in Schuette would apply to the entirety of Proposal 2, including its provisions on employment and contracting. 

It is useful to ponder what would be happening now had a majority of justices reached the opposite conclusion and ruled against Michigan voters. For one thing, groups would be filing lawsuits against the seven states whose voters have passed colorblind laws similar to Michigan’s. And for another, Michigan state officials would again be defining and sorting people into racial categories for the purpose of granting, as Justice Kennedy puts it, “favored status to persons in some racial categories and not others.” 

Plessy was decided in the decade when Jim Crow was beginning its strange career. For Justice Harlan, the colorblind Constitution condemned legally enforced segregation. Today, colorblind law opposes government efforts to “divvy us up by race,” as the chief justice has put it, and to prefer some citizens of certain races over others of different races in allocating limited opportunities, such as seats in classes at an elite state university or government contracts for which companies must compete. 

In Schuette, the Court doesn’t take sides on colorblind law. But it also doesn’t deny the voters of Michigan or any other state the ability to choose colorblind law. It declines to stand in their way.

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