The 6th Circuit case originating out of Michigan, Schuette v. The Coalition to Defend Affirmative Action, is up in front of the Supreme Court because of a single problem: the increasingly popular understanding of affirmative action as a superfluous tool in combatting the effects of centuries of discrimination against minorities, particularly people of color.
The controversy revolves around Proposal 2, a Michigan state ballot initiative that prohibited the use of identity criteria in state university admissions and public contracting. Proposal 2 was enacted in 2006, and immediately afterward coalitions of students and advocacy groups organized to challenge its constitutionality. After a lengthy and procedurally convoluted stem of litigation wound its way through the courts, the Court of Appeals (sitting en banc) struck down Proposal 2 on the grounds that it violated the Equal Protection clause of the 14th Amendment. The appeals court relied on a little-used Equal Protection doctrine developed in two cases, Hunter v. Erickson and Washington v. Seattle Independent School District to arrive at its holding that Proposal 2 was unconstitutional. This doctrine, termed the Hunter/Seattle doctrine (a glimpse into the amount of whimsy lawyers can muster), states that a popularly enacted law can violate the equal protection clause even absent discriminatory intent, given certain circumstances.
Specifically, a popularly-enacted law violates the equal protection clause under Hunter/Seattle when it constrains the enactment of policies which “inure primarily to the benefit of minorities,” by reordering government processes to make it difficult or impossible for minorities to democratically enact those policies. So for example in Washington, the ballot initiative amended the state constitution to ban the practice of race-based busing (by requiring neighborhood schooling in all districts). Race-based busing was clearly a policy which “inured primarily to the benefit” of minorities. But now, people of color in Seattle could no longer simply lobby the school board (which had previously had the authority to create busing programs), but had to amend the state constitution. In the words of the Court, the political process had been “reordered” for the express purpose of putting beneficial legislation out of reach of minority groups.* The traditional requirements for finding an equal protection violation–among them discriminatory intent of legislators or facially discriminatory language on the face of the law, for example language that drew a distinction between races–did not apply in these cases. In Hunter, a city ballot initiative prohibited the city council from implementing integrative housing policies without a majority vote of the public; in Seattle Independent School District, school districts were prohibited from enacting mandatory busing policies.
The Court was unwilling to be constrained by these formal arguments. Although there were no racial classifications, and the intent of millions of voters could not be fairly ascertained (indeed, many voters probably sincerely felt they were prohibiting preferential treatment, not discriminating against anybody), the practical effect of the initiatives was plain: minorities were being screened out of the political process. There was no reason why majority groups could not simply enact laws democratically; they’re the majority after all. The violation comes in the fact that the majority group is not only changing the law, but then shutting the door behind them, as it were, and making it impossible for minority groups to play.
Emily Bazelon argues that the banning of affirmative action policies in university admissions is not analogous to the school busing and housing policies at issue in the two foundational cases:
The problem is that the goal of busing plans and fair-housing laws is to treat everyone equally. So the voter initiatives blocking them in Akron and Seattle flew in the face of equal treatment. Michigan’s Proposal 2, by contrast, involves taking away a means of preferential treatment, based on race. Affirmative action, formally speaking, isn’t about treating all applicants equally. It’s about introducing a different set of standards for some applicants. A more equal society may be the broader long-term goal of affirmative action. But the way you get there is by treating people differently, based on race.
I think Bazelon’s focus on that issue is mistaken. In the Hunter/Seattle jurisprudence, the threshold issue is not whether the law at issue addresses discrimination, but rather only whether it “inures primarily to the benefit of minorities.” This makes sense given the need for the doctrine in the first place. The equal protection violation is in the re-ordering. The question is whether the majority has put beneficial legislation out of the reach of minorities, where other groups have no such hurdles. (So for example in the Seattle case, groups of parents from a particular neighborhood could still go to the school district to implement some beneficial policy).
The focus on whether affirmative action is preferential treatment distinct from e.g., busing meant to end de facto segregation is misleading. Affirmative action is a result of the same discrimination that necessitated busing and integrative housing policies. Affirmative action is preferential, but it rests on the logic that centuries of discrimination was not a mere matter of individual attitudes, but over time molded social structures that require programmatic solutions. There’s some authority for this idea; in United Steelworkers v. Weber the Court held that it was some kind of chicanery to think that Title VII of the Civil Rights Act, which prohibited discrimination in employment, could be construed to ban employers’ affirmative action programs. The goal of Title VII after all was to end discrimination in employment, and so long as affirmative action was an effective and reasonable means of correcting structural bars to that goal, it was legitimate.
Since the Hunter/Seattle doctrine requires only that the policy at issue be one that “inures primarily to the benefit of minorities,” a tempered affirmative action admissions policy should fall easily into its ambit.
The problem is nevertheless thorny in the Michigan case because there is a real question as to whether Proposal 2 actually “reordered government.” In the foundational cases, only minority-benefitting policies were made to require some additional hurdle for passage that rested at a higher level of government. In Michigan, the authority to implement affirmative action policies was taken away from school administrators (and the respective boards of trustees/regents). In order to implement them, affirmative action proponents would have to amend the state constitution. An alumni group wishing to implement a policy favoring legacies could still go to the trustees or school administrators.
The thing is though that the ballot initiative is a statewide process, considered to be at the same governmental “level” as the legislature. This makes sense; a successful ballot initiative cannot be repealed by the legislature or vetoed by the executive. But the trustee boards are statewide bodies too; they’re elected statewide in staggered terms. The boards in turn promulgate by-laws by which university administrators are bound. There’s a reasonable argument to be made that amending the state constitution is no more difficult than successfully lobbying state-wide boards to change university by-laws. If the ballot initiative, legislature, executive, and boards of trustees are “coordinate” bodies, then perhaps amending the state constitution does not affect the kind of “reordering” contemplated in Hunter and Seattle.
The bigger effect of Schuette will not be on affirmative action itself (in the sense that the Texas case was about the propriety of affirmative action itself), but on the limits of majoritarian control over affirmative action programs. Can the voters of a state bar subordinate government bodies from employing affirmative action policies? (This is why the ban on preferential treatment for minority state contractors was not similarly challenged).
There are a number of ways the Court could go; the decision could be narrowly limited to the circumstances in Michigan, holding that where state universities are governed by statewide bodies, constitutional amendments do not violate the 14th amendment; or, conversely that universities that enjoy some autonomy in crafting their policies cannot be prevented from implementing affirmative action policies by majoritarian fiat.
Or the Court could also go broader and limit or refute some parts of Hunter/Seattle. They could, as Bazelon suggests, cleave affirmative action from the class of policies that “inure primarily to the benefit of minorities.” To do that, they would need to interpret that phrase as including only those policies that directly undo some kind of discrimination (segregation in housing for example). This would be a dangerous precedent; it would implicate the already waning law from Weber, and terminate affirmative action’s career as a necessary tool to address structural discrimination.
The Court could go a third way and simply redefine “reordering.” It may require that reordering explicitly jigger with the process to attack the capacity of minorities to participate in otherwise formal processes. In the Michigan case, the academic insularity otherwise enjoyed by university administrators make the creation of admissions policies somewhat “non-political,” more closely related to the Fed’s creation of monetary policy or ministerial actions by technical agencies like the EPA. This would leave the majoritarian and affirmative action issues untouched while giving the conservatives members what the mostly like want.
*For the purposes of the Hunter/Seattle test a group need not necessarily be a statistical minority to be considered a politically disadvantaged group. Case authority for this came from, among other cases, a plurality opinion in Frontiero v. Richardson, a spousal benefits case from the 1970s.