US Supreme Court ponders politics of affirmative action

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By Kimberly Atkins
Dolan Media Newswires

In a case on the Michigan law banning the use of racial preferences in college admissions, the U.S. Supreme Court is wrangling over the constitutional limits of laws involving affirmative action.

The case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, marks the second time in as many terms that the justices have dealt with the issue. But Schuette not from an affirmative action policy but rather from a state law banning preferences, and the challenge involves access to political processes. But the underlying issue — how race-based decision-making squares with the Constitution — is the same, and it’s as legally and politically thorny as ever.

“This is another example [of the] fundamental political divide as to what role race plays in law,” said Georgetown University Law Center professor Randy Barnett.
“On the one hand you have those who think that the use of race for any purpose is highly suspect and needs an exceedingly strong justification, [and] on the other hand you have people who say the invidious use of racial categories [is wrong] but using it to help people and not to hurt people is a good thing. This is another example of the perennial clash of these two visions.”

The court seemed divided during oral arguments last week. Justice Elena Kagan’s recusal from the case suggested that the best that those challenging the ban can hope for is a 4-4 tie, which would allow the 6th U.S. Circuit Court of Appeals ruling striking down the law to stand. But Justice Anthony Kennedy, known for being the deciding swing vote in high-stakes cases, could give Michigan officials the necessary fifth vote to uphold the law.

At oral arguments, Kennedy did not tip his hand, but he posed several complex hypothetical scenarios as he tried to delineate the constitutional limits of racial preferences.

“Suppose [a university] dean has authority in the bylaws of the university to reverse what the faculty does, but you have a dean who just does not like affirmative action,” Kennedy asked at one point. “He is dead against it. And he makes the decision to reverse the faculty. What’s the remedy?”

Race and the ‘political process doctrine’

At issue in the case is a Michigan voter-instituted constitutional amendment known as Proposal 2. The measure bans state universities and other public entities from granting preferential treatment on the basis of race, gender or ethnicity in education, employment or government contracting.

The amendment precludes university affirmative action programs that would otherwise pass constitutional scrutiny under the court’s ruling last year in Fisher v. University of Texas at Austin. In that case, the justices toughened the standard schools must meet in order to consider race in admissions but declined to outlaw affirmative action entirely.

In an 8-7 en banc ruling, the 6th Circuit struck down the Michigan law, citing the Supreme Court’s 1982 ruling in Washington v. Seattle School District No. 1, which overturned a Washington State law virtually banning the use of busing to desegregate schools based on the “burden it imposes on minority participation in the political process.”

The 6th Circuit found that Proposal 2 violated minority group members’ Equal Protection rights under the “political process doctrine” by making it tougher for them to seek redress via the political system.

“A [white] student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities [could] lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution,” the court said. “The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution — a lengthy, expensive, and arduous process — to repeal the consequences of Proposal 2.”

Michigan is one of nearly a dozen states that ban or restrict the preferential use of race in public university admissions and other state actions. A similar voter-approved ban was passed in Oklahoma last year, and Arizona voters instituted a measure in 2010.

‘A murky picture’

At oral arguments, Michigan Solicitor General John Bursch acknowledged that the use of affirmative action is “certainly one of the most hotly contested issues of our time.”

But he said that the law at issue was not about affirmative action, but rather the state’s attempt to place school applicants on more equal footing. Unlike the Seattle measure, the Michigan law “does not repeal an anti-discrimination law,” Bursch said.

Justice Sonia Sotomayor noted that the Michigan law, like the one at issue in Seattle School District 1, barred a remedy for discrimination.

“Why isn’t this identical to Seattle?” she asked.

Bursch said Michigan’s amendment assures that measures to boost diversity in state universities benefit the entire student body rather than unfairly granting preferential treatment to one group. He said that schools could still achieve more diversity through race-neutral measures like eliminating legacy preferences and taking applicants’ socioeconomic backgrounds into consideration.

“The University of Michigan could be trying harder,” Bursch said.

Justice Ruth Bader Ginsburg asked about the impact the law has had on university diversity. “Do you have any picture?”

“A murky picture,” Bursch replied, acknowledging a drop in the admission rates of black students, but he said other factors — such as new self-identification forms that allow students to check multiple boxes for race — could be to blame for the numbers.

But Shanta Driver, a partner at Scheff, Washington & Driver PC in Detroit who represents a coalition of groups and individuals challenging the law, painted a bleaker portrait.

“There has been a precipitous drop in underrepresented minority enrollment” since the law passed in 2006, Driver told the justices.

Justice Samuel Alito Jr. asked whether the fact that the law was approved by voters undermines the argument that it robs people of access to the political process.

“Don’t the people of Michigan have plenary authority?” he asked.

“Ninety percent of blacks voted against Proposal 2,” Driver replied.

Mark Rosenbaum, chief counsel of the American Civil Liberties Union in Los Angeles, represented several individuals challenging the law. He argued that Proposal 2 robs members of the universities’ elected boards of regents of the power to make decisions about admission priorities and applicants of the ability to appeal to board members.

“That is part of the ordinary political process,” Rosenbaum stressed.

A decision from the court is expected later this term.