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An Opportunity for the Court

Nov 4, 2013, Vol. 19, No. 08 • By TERRY EASTLAND
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Among the first cases heard by the Supreme Court in its new term is one from Michigan. The state stands accused of violating the Constitution’s equal protection guarantee by requiring equal treatment in public-university admissions decisions. Michigan has committed no such violation. Yet to judge by the oral argument in Schuette v. Coalition to Defend Affirmative Action, the Court, surprisingly, is closely divided. A decision against Michigan would be a setback for equal protection.

SCOTUS

To understand the case, you have to go back to 2003, when the Court decided the Michigan affirmative action cases, which are still the leading ones on the use of race in admissions in higher education. The Court reaffirmed that quotas may not be used to admit minorities. But, in Grutter v. Bollinger, it also refused to say the Constitution forbids any consideration of race, declining to strike down large admissions preferences administered by the University of Michigan Law School.

The ruling in Grutter was among the reasons that Michigan voters in 2006 approved Proposal 2, a ballot measure modeled on Proposition 209 in California, which had been passed by that state’s voters in 1996. Proposal 2, which received 58 percent of the vote, amended the Michigan constitution to prohibit discrimination or preferential treatment based on race, sex, ethnicity, or national origin in public education, contracting, and public employment.

Proposal 2 thus requires that in those three areas persons may be neither favored nor disfavored on account of race, sex, ethnicity, or national origin. Necessarily, in the context of public-university admissions, it eliminates consideration of those grounds in deciding whom to enroll or not. In sum, Proposal 2 mandates the colorblind treatment of applicants and thus an end to race-based affirmative action.

Groups opposing colorblind admissions and favoring such affirmative action responded to Proposal 2 by suing to have declared unconstitutional the part that concerns higher education. And last year, by a vote of 8 to 7, the U.S. Court of Appeals for the Sixth Circuit struck it down. Because the Ninth Circuit some years ago rejected a similar challenge to Proposition 209, the Sixth Circuit’s decision created a split in the circuits, one the Supreme Court feels necessary to resolve—correctly, we hope.

The Sixth Circuit held that Proposal 2 violates the federal equal protection clause by targeting a program of benefit to racial minorities—admissions policies that consider race—and reordering the political process in a way that places “special burdens” on a minority interest.

But the court did not define “racial minorities.” Nor did it ask whether the interests of minority individuals and of different minority groups might conflict. In his dissent, Judge Jeffrey Sutton made the salient point that “a ban on racial preferences . . . may favor some racial groups today and others tomorrow.”

Still, the important question here is whether preferences actually benefit the minorities getting them. And an accumulating literature is revealing serious doubt about that. In their recent book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help and Why Universities Won’t Admit It, Richard Sander and Stuart Taylor report “a growing volume of very careful research, some of it completely unrebutted by dissenting work, [suggesting] that racial preferences in higher education often undermine minority achievement.”

Fortunately, this research is not unknown inside the Court: During the oral argument, citing the work of “Taylor and Sander,” Chief Justice John Roberts asked the counsel for the affirmative action coalition what might happen if the question of minority benefit were “more open to debate. .  .  . Do we have to assume .  .  . that these [programs] definitely are beneficial to particular minority groups?”

To the extent that such programs are not beneficial to minorities, their continued “interest” in having them is weakened. As is the force of the argument embraced by the Sixth Circuit about the impermissible restructuring of the political process, since it assumes that preferential affirmative action is indeed in the interest of minorities.

The restructuring argument boils down to this: that by including in the state constitution a policy against racial discrimination, Michigan is discriminating against racial minorities who might wish to revive preferential admissions policies. For before they can lobby the usual parties—admissions officers, deans, elected education officials—they have to get rid of the constitutional provision, meaning they have to put a measure on the ballot, as the advocates of Proposal 2 did, and move public opinion to their side. Meanwhile, other nonracial interest groups—fishermen, homebuilders, doctors, even alums seeking change in alumni admissions—can lobby for their causes through the ordinary avenues of change, not constrained in any way by the state constitution.

The problem with this argument is that Proposal 2 doesn’t target racial minorities. It discriminates, to be sure, but what it discriminates against aren’t people but racial discrimination, hostility to which is commanded by the Fourteenth Amendment’s equal protection guarantee.

Nor is “restructuring” an evil of some kind. Law reorders things. That’s what it does. And as a result of the reordering effected by Proposal 2, racial preferences in admissions are no longer left to ordinary politics but “taken off the table,” where, history counsels, they ought to stay.

Justice Elena Kagan is recused from Schuette, having worked on it as solicitor general, so eight justices will decide the case. Five will be needed to reverse the Sixth Circuit, which is working on a 20-case losing streak in the Supreme Court. The decision the Court renders could apply nationwide and affect similar measures that have been added to the constitutions of Arizona, Nebraska, and Oklahoma, as well as, of course, California.

Justice Anthony Kennedy’s vote may prove decisive. Kennedy dissented in Grutter, yet he seems unwilling to go as far in eliminating consideration of race in admissions as Roberts probably is—which seems to be all the way. The critical point for the Court to take up is whether the Fourteenth Amendment indeed forbids the choice Michigan made in passing Proposal 2—the choice for color-blind law. Proposal 2 is actually in full agreement with Grutter’s understanding of fundamental principle, as stated by the majority in that case: “A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.”

The Court, perhaps with Kennedy writing, has the opportunity to further that purpose by reversing the Sixth Circuit and affirming the constitutionality of Proposal 2.

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