The Supreme Court’s decision in the Schuette case, which upheld the right of Michigan’s citizens to ban race conscious admissions at the state’s colleges and universities (and in many other governmental activities as well), surprised no Court watchers. Four of the current Justices would ban race-based affirmative action altogether, and a fifth, Justice Kennedy, who wrote the Schuette decision, would seriously restrict occasions in which it can be employed. Even Justice Breyer, who provided a sixth vote to uphold the amendment, did not greatly surprise because he is the most conservative of the Court’s liberal wing, and he often sees cases somewhat differently than his liberal colleagues.
If there is anything surprising about Schuette, it is that there was a case to begin with, and one that was strong enough to carry the day in the Sixth Circuit and attract 2 votes (which no doubt would have been three had Justice Kagan not recused herself) in the Supreme Court, for on the surface the case is a no brainer. To understand the situation one must first recognize that two propositions were, for the purposes of the litigation, accepted by the parties and the Court: (1) in certain limited circumstances, the constitution permits race-conscious admissions (affirmative action), and (2) although the constitution permits affirmative action it does not require it. The second proposition means that a public university can decide not to engage in affirmative action, and that whether elected or appointed a university’s board of trustees or regents can forbid the university it governs from considering a student’s race in the admissions process. Moreover, the respondents in Schuette (those claiming the amendment was unconstitutional) seemed willing to concede that the Michigan state legislature also could have barred affirmative action at state supported colleges and universities. So if the University of Michigan’s Board of Regents could vote to bar affirmative action without offending the constitution, and if the state legislature could vote to bar affirmative action without offending the constitution, one may wonder how is it even possible to claim that the people of the state of Michigan, who elect both the regents and legislature, cannot by that most democratic of processes, a plebiscite on a constitutional amendment, choose to bar affirmative action without offending the U.S. Constitution.
The answer lies in what is called the “political-process doctrine.” This doctrine holds that citizens cannot vote to establish special procedures which change the political process so that minorities must overcome hurdles that other groups do not confront when they seek political action to advance their interests. The doctrine is rooted in two cases. One (Hunter v. Erickson) involved an amendment to the Akron city charter in response to a fair housing ordinance passed by the Akron city council. The amendment provided that this ordinance and any similar laws aimed at preventing discrimination in real estate transactions could not take effect unless approved by the city’s voters. The other (Washington v. Seattle School Dist. No. 1) involved busing aimed at ending racial imbalance in the Seattle public schools that had been ordered by the Seattle school board. The state’s voters responded to the board’s plan by passing an initiative which limited school assignments to the school nearest or next nearest a student’s home, effectively gutting the effort. In both cases voters sought to change existing political processes so that those advocating integration and/or non-discrimination and who had succeeded in persuading relevant political actors to advance their causes, found they had an extra and difficult burden to meet, and one which those appearing before the same bodies advocating for other causes did not confront. In each case the Supreme Court held that changing the political game in this way was, when the issue that triggered the pivot involved race, a violation of the equal protection clause.
The respondent’s argument in Schuette was that the constitutional amendment barring affirmative action by Michigan’s state schools was no different from the voter actions declared unconstitutional in Hunter and Seattle. After the amendment passed, anyone seeking to have race considered in the University of Michigan’s admissions process would not only have to persuade the school’s regents that this was desirable, but would also have to secure hundreds of thousands of signatures to place the issue on the ballot and would most likely need to invest millions of dollars to get Michigan’s voters to change the law, with no guarantee that the effort would succeed. But someone who wanted the university to give admissions preferences for reasons other than race (and a few other characteristics also covered by the amendment; e.g. gender) would only have to persuade five of eight regents to his view. Thus if citizens living in Michigan’s almost entirely white upper peninsula wanted in-state geographic diversity to count for more, they could band together and seek to persuade the regents to this view, but if groups from Detroit’s inner city wanted an applicant’s contribution to racial diversity to count for more, they would have to mount the kind of statewide campaign I describe above.
Interestingly, four of the eight Justices who participated in the case agreed that Hunter and Seattle meant that the Michigan voters’ action was unconstitutional, but two of these, Justices Scalia and Thomas, believed these cases had been wrongly decided and should be overruled. Three other Justices, Kennedy the author of the plurality opinion, Roberts and Alito, didn’t go so far as to overrule the key precedents but reinterpreted the decisions, holding their rule applied only when the voter-mandated procedures thwarted efforts aimed at rectifying or preventing some injury to a racially distinct group. Unless it was a court-ordered remedy for past discrimination, affirmative action, they argued, was not designed to rectify or prevent an injury. At most it provided, and Michigan’s voters took away, a benefit minorities might enjoy.
The dirty secret of the jurisprudence of race is, as Schuette suggests, that it is not so much a principled jurisprudence as it is an arena where most judges feel free to enact their personal values into law. Thus, in the Sixth Circuit, sitting en banc, the vote finding the Michigan amendment unconstitutional was 8 to 7, with the 8 judges appointed by Democratic Presidents forming the majority and the 7 judges appointed by Republicans all dissenting. In the Supreme Court only Justice Breyer’s vote was inconsistent with this partisan divide, and his rationale was distinct from that of the other Justices who voted to reverse the decision below. One result of the Supreme Court following the election returns, is that there are enough inconsistent decisions on matters relating to race that no matter how a judge or Justice wishes to come out there is likely to be precedent to support the judge’s preferences or at worst precedent which, as in Schuette, may be interpreted so as to support these preferences. Reflecting these twists and turns, cases during the last several decades usually end with minority interests given short shrift, while earlier cases most often found minority claimants on the winning side.
In the wake of Schuette, commentators have been asking whether the case will herald a new round of state constitutional amendments or other enactments aimed at outlawing affirmative action. It may well have this result but not because of how it was decided. Until the Sixth Circuit’s decision in Schuette, the general view was that voter enacted affirmative action bans were constitutional, and the Supreme Court’s was generally expected to reverse the Sixth Circuit once its decision in Schuette was handed down. So the Court’s decision changed nothing. However, when the Court decides a politically sensitive issue, it often elevates that issue on the nation’s political agenda. It is possible that by putting affirmative action back in the spotlight and by highlighting the capacity of citizens to decide to ban it, Schuette will energize those opposed to affirmative action and encourage them and their donors to organize more campaigns like the one that led to Michigan’s constitutional ban. The irony, however, is that the implications of Schuette for affirmative action might have been worse had the decision come down the other way. Had the Supreme Court affirmed the Sixth Circuit’s decision, the case would have provided substantial fodder for columnists, commentators and opinion leader opposed to affirmative action, and even some supporters of affirmative action would have questioned the result. Not only would echoes from the case taken longer to die out, but the intuitive implausibility of holding that citizens cannot ban affirmative action when their elected representatives can, might have led to widespread and irresistible pressures on legislatures and regents to ban affirmative action not just because of opposition to race-conscious admissions but also as a statement of the people’s right to rule.
If there is genuine solace that affirmative action’s supporters can take from Schuette, it is likely to lie in Justice Sotomayor’s eloquent dissent, and in particular in portions of the dissent that have seemingly little to do with the legal issues in the case. Justice Sotomayor, for example, writes:
“[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?” regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
Race discrimination law, even in decisions protecting and advancing the rights of minorities, has for many years been blind to how race is enacted in society. Only if discrimination is overt and provable is a legal remedy likely, and only laws openly aimed at disadvantaging a particular race, that is laws that have all but disappeared, are likely to be invalidated by the current Supreme Court majority. Yet there is compelling research which shows the persistence of racial disadvantage. If a job applicant appears to be white his chances of being interviewed for a position are considerably greater than if he is a black applicant with the same education and work history. Indeed, in one study a white man with a prison record was more likely to get a job than a black man without one. Housing audits are similarly informative. When testers are sent out, more than occasionally a black couple seeking to rent an apartment will be told that the unit they came to visit was “just taken,” but a white couple coming by an hour later will be offered the apartment.” Moreover, controlled experiments are not needed to show that voter identification laws do almost nothing to prevent fraud but make it less likely that the poor and minorities will be able to vote, nor when the Supreme Court chose to overrule part of the Voting Rights Act, was it impossible to predict that legislatures in covered states would use their newfound freedom from preclearance to change rules so as to disadvantage minorities. A number of Justices, it is fair to say, have been willfully blind to the persistence of racial discrimination and disadvantage. They have not only sustained laws and actions that have perpetuated both, but they also have invalidated efforts aimed at ameliorating racial disadvantage and remedying discrimination. Perhaps over time Justice Sotomayor’s insistence that others see the reality of race’s impact on lives will open the eyes of some of her more conservative colleagues at least a bit. With clearer sight, they might even see that not only does affirmative action promote diversity to the benefit of all students, but also that whatever advantage it provides minorities at best cancels the disadvantages that its beneficiaries may suffer because of their race.
Editor’s Note: Professor Lempert is one of three lawyers who together submitted an empirically-focused amicus brief on behalf of the respondent in Schuette.