Supreme Court Weighs Michigan Affirmative-Action Ban

By Mark Walsh — October 15, 2013 4 min read
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Conservatives on the U.S. Supreme Court appeared skeptical on Tuesday that Michigan’s voter-enacted prohibition on affirmative action in higher education violates the 14th Amendment’s equal-protection principles.

“It’s not a racial classification; it’s a prohibition of racial classifications,” Justice Antonin Scalia said of the 2006 ballot measure known as Proposal 2 during arguments in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682).

The measure also barred race preferences in K-12 public schools and other areas of state government, but the case before the high court concerns the measure’s prohibition of race preferences in college admissions. (Still, the court’s decision could have wide implications, as I reported here.)

Chief Justice John G. Roberts Jr., another of the court’s conservatives on race issues, wondered why the state’s voters couldn’t conclude that “race is a lightning rod” and that they would like to try race-neutral alternatives in admissions without running afoul of the equal-protection clause.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year that the ballot measure violated the “political restructuring” doctrine, meaning it made it more difficult for racial minorities to reverse the measure. That was a significant change in the ordinary political process and a racial classification that did not survive strict scrutiny, or the highest level justification needed to uphold a government policy, the court ruled.

The political-restructuring doctrine stems from two Supreme Court precedents: In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a local fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

Those cases, especially the Seattle busing case, figured prominently in oral arguments on Tuesday.

“There’s no way to distinguish Seattle from this case, nor the Hunter case,” said Mark Rosenbaum of the American Civil Liberties Union, one of two lawyers arguing against Michigan. Both would have to be overruled for the Supreme Court to be able reinstate the ballot measure, he said.

“Here is why the Seattle case is identical to this case,” Rosenbaum said. “Both cases involve constitutionally permissible plans which had as their objective obtaining diversity on campuses. Seattle was a K through 12 case. This case is a higher education case. But in both instances, the objective was to obtain diversity.”

The Proposal 2 opponents found strong allies in two of the court’s more liberal members.

“The rationale of Seattle is that you can’t put hurdles in the way of a disadvantaged minority,” said Justice Ruth Bader Ginsburg, one of the court’s liberals who seemed more sympathetic to the group that challenged Proposal 2.

Justice Sonia Sotomayor wondered why the political-restructuring doctrine did not permit busing to be removed from the desegregation tools of the Seattle school board but would allow a Michigan’s voters to remove the decision to have a race-conscious college admissions plan from the state board of regents.

“This amendment is stopping the political process,” Sotomayor said. “It’s saying the board of regents it can do everything else in the field of education” but affirmative action, she said.

John J. Bursch, the solicitor general of Michigan, who was defending Proposal 2 before the justices, said, “It does not violate equal protection to require equal treatment” of race.

Justices Stephen G. Breyer and Anthony M. Kennedy were harder to read during the arguments. Kennedy, who is usually the pivotal vote in cases about race, told Bursch that he had trouble distinguishing the Michigan case from the 1982 Seattle decision.

But he later pressed the lawyers attacking Proposal 2 about why the equal-protection concern should kick in with a ballot initiative eliminating affirmative action in admissions, but not if the board of regents or other state officials made such a decision.

Shanta Driver, the lawyer representing the group whose full name is the Coalition to Defend Affirmative Action and Immigrant Rights and Fight for Equality By Any Means Necessary, said that because the regents have the plenary authority over admissions policies, they could make the decision to end affirmative action without running afoul of the equal-protection clause.

“Minorities still have the right to lobby the regents” for affirmative action, but they face a steep political hurdle to undo a ballot initiative, she said.

Justice Elena Kagan is not participating in the case, presumably because she worked on it when she was U.S. Solicitor General. (In an unusual move for such a high-profile case involving race and education, the Obama administration did not participate in the case at the Supreme Court.)

Michigan must gain five votes on the court to overturn the 6th Circuit ruling striking down Proposal 2. A 4-4 tie on the court would result in the appeals court ruling being affirmed without an opinion.

A decision in the case is expected by late June.

Nakia Wallace, center, a student at Cass Technical High School in Detroit, joins others demonstrating in support of affirmative action in college admissions outside the U.S. Supreme Court in Washington on Tuesday. --Susan Walsh/AP

A version of this news article first appeared in The School Law Blog.