On Affirmative Action, the Court Tackles a Deceptively Simple Question

When it comes to race-based admissions, both sides contain people of good will. And neither group can understand a word the other says.

  Shanta Driver, the national spokesperson for By Any Means Necessary (BAMN), delivered arguments before the Court today. Here, she celebrates the Supreme Court's 2003 ruling in favor of race-based admissions. (REUTERS)

You could say that the whole point of something like the Equal Protection Clause is to take race off the table,” Chief Justice John Roberts mused from the bench yesterday.

Many Americans believe just that—that the central command of the Equal Protection Clause is to produce a system where race doesn’t matter and we don’t have to think about it.

Many other Americans, however, believe that the point of the Clause—of the whole Fourteenth Amendment, in fact—is to bring about real equality, not as goal or a motto but as a fact. And if government has to take account of race to do that, so be it.

Both groups contain people of good will. And neither group can understand a word the other says.

The gap was on display Tuesday at the Supreme Court, when the justices heard argument in Schuette v. Coalition to Defend Affirmative Action. Schuette asks a deceptively simple question: Can the people of a state, by majority vote, make it unlawful for colleges and universities to use race-based affirmative action in admissions—which is perfectly legal under the Constitution?

One side says, of course! No state is required to use affirmative action at any level. Equal treatment is the sole aim. The other side responds, are you kidding? The voters take a program designed to boost minority numbers and, by majority vote, place that one program off limits. What's equal about that?

Proposal 2, now Art. I Sec. 26 of the Michigan Constitution, says that state universities "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, or public contracting." It was placed on the ballot after the twin 2003 Grutter cases, in which Supreme Court upheld one of the University of Michigan's affirmative action policies. Fifty-eight percent of the voters supported it in November 2006. Soon after, two groups challenged it. One is the Coalition to Defend Affirmative Action by Any Means Necessary (BAMN), which as the name implies, is made up of old-line civil rights groups. The other group has come to be known as "the Cantrell respondents"--a group of students and faculty at state universities, and some people who hope to apply.

The two cases were consolidated, even though the two groups had, and have, very different arguments to make. In 2012, the Sixth Circuit, sitting en banc, agreed that the law was unconstitutional. The opinion noted that race-conscious programs are rarely even permitted, much less required. But the Sixth Circuit's relied on a seldom used doctrine called "the political restructuring doctrine.” In essence, it says that legislatures and voters can't rewrite the law to make it impossible for minority groups to achieve their political goals—for example, by requiring a referendum before any civil rights law can be passed by the legislature.

The Sixth Circuit enunciated the rule as saying that "the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to" minorities. Amendment 2 requires advocates of affirmative action to amend the state constitution--"a lengthy, expensive, and arduous process"--in order to reinstate affirmative action. "The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of change," the majority said.

The minority filed a series of dissents, asserting with varying levels of rage that, as Judge Boggs put it in his, “holding it to be a violation of equal protection for the ultimate political authority to declare a uniform policy of non-discrimination is vastly far afield from the Supreme Court precedents.”

On Wednesday, Michigan Solicitor General John J. Bursch told the Court that "political restructuring" should apply only when a measure both repeals an anti-discrimination law and makes it harder--by amending the state constitution, say--to enact a new one. Proposal 2 doesn't repeal any prohibitions on discrimination, it strengthens them, he said. "The people of Michigan decided to move past the day when we are all focused on race."

There are two ways for a lawyer to respond to this argument. One is to say, "With respect, I believe that the argument doesn't fully take account of the facts and the law." The other is to say, “Are you kidding me? A white majority overrules a civil-rights victory with a polarized referendum, and you think race was not involved?"

Both arguments have a good deal of truth in them; but only one is the right way to approach this Court. The "Cantrell plaintiffs," in a brief written by a galaxy of legal stars including Laurence Tribe of Harvard, adopted the first approach. (It was clear from the tone of the briefs, and the relatively unusual division of the oral argument into two fifteen-minute segments, that there had been some disagreement between the two groups of challengers. Justice Elena Kagan did not take part in the argument.) The Cantrell brief proposed a narrow rule: “when race is the predominant factor explaining a state's decision to establish a distinct political process, the governmental action creates a racial classification subject to strict scrutiny."

What Michigan had done, their lawyer, Mark Rosenbaum said, was wall of racial admissions decisions and create a special, harder procedure for adopting them: “Under their theory, the people of the State -- of a State could amend their constitution, put in the legislature two rooms, one for racial matters one for all other sorts of matters, and say to any entrant who wants to enter that first room: You may do so, but first you have to pay an exorbitant cover charge and then you have to mount multiple stairs, flights of stairs, just to begin the process of enacting constitutionally permissible legislation.”

Shanta Driver, the head of BAMN, gave the justices a taste of the “Are you kidding?” approach. In its brief, BAMN had compared Proposal 2 to the post-Civil War "black codes" that regulated what work non-whites could perform. In her opening, Driver asked the Court “bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority. . . . It’s a measure in which the question of discrimination is determined not just by -- by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.”

This was too much for Justice Antonin Scalia. “So if you have a banding together of various minority groups who discriminate against -- against whites, that's okay? . . . Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?”

“No case of yours,” Driver said. The ironic tone may have been in the ear of the hearers.

The rest of the argument focused on when a state or local government could, under the “restructuring doctrine,” abolish an affirmative-action program. That question bothered Justice Anthony Kennedy—no fan of affirmative action—as well as Alito. But it also bothered Justice Stephen G. Breyer, who noted that governments make dozens of decisions on hiring, at many levels. Was Driver advocating a rule that would make each lower-level decision unamendable?

When Driver seemed to be struggling with the answer, Justice Sonia Sotomayor jumped in to rescue her: “It's when the . . . political process has changed specifically and only for race, as a constitutional amendment here was intended to do, that the political doctrine is violated. Have I restated?” Driver gratefully agreed.

The Court was harder to read than usual, but the question in my mind at the end of the argument was not which way the justices would rule but how many of them would vote to reinstate Proposal 2. Justice Sotomayor, who has said she regards affirmative action as key to her career, seemed to be favoring the challengers; the other moderate-liberals held their fire.

One part of the briefing provided an unstated ironic backdrop to the argument. The “restructuring” doctrine shouldn’t apply to Proposal 2, and indeed was a good candidate for being overruled in toto. And Proposal 2 was necessary in the first place because

a Michigan citizen seeking to implement § 26’s policy through the “political process” would have to elect a majority of Michigan, Michigan State, and Wayne State’s eight-member boards of trustees (which would take an eight-year process spanning at least three statewide election cycles) willing to abolish preference programs, then hope that the trustees would stand up to the faculty committees that believe that they alone have exclusive control over the admissions process.

Remember the Sixth Circuit’s logic about subjecting one group to "a lengthy, expensive, and arduous process"? Apparently, the political structure really does matter—when it makes life tough for the majority.