Schuette v. Coalition to Defend Affirmative Action
Does a state violate the Equal Protection Clause or political-restructuring doctrine by amending the state constitution to prohibit public universities and schools from using race in their admissions processes?
In November 2006, 51% of Michigan voters approved Proposal 2, which created Section 26 of the Michigan Constitution, banning public universities and schools from using race as a factor in admissions decisions. On March 18, 2008, a Michigan District Court ruled the amendment constitutional. In 2011, an en banc panel of the Sixth Circuit reversed and ruled the amendment unconstitutional because it violated the political-restructuring doctrine. Petitioner Bill Schuette, the Attorney General of Michigan, argues that because Section 26 of the Michigan Constitution lacks discriminatory intent it is not a racial classification, and thus the Equal Protection Clause and political-restructuring doctrine do not apply. However, Respondent Coalition to Defend Affirmative Action contends that Section 26 contains racial classifications because it targets racially-conscious admissions plans in public schools. The Supreme Court will decide whether this prohibition of the use of race in university admissions violates the Equal Protection Clause or the political-restructuring doctrine. The Court's decision will have far-reaching implications for admissions policies and racial demographics in public universities and schools throughout the United States.
Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race and sex-based discrimination or preferential treatment in the admissions decisions of public universities.
In November 2006, Michigan voters adopted Proposal 2, an amendment to the Michigan Constitution prohibiting discrimination against or preferential treatment to individuals in public education, government contracting, and public employment on the basis of race, sex, ethnicity, or national origin. See Brief for Petitioner, Bill Schuette at 17; Mich. Const. art. I, § 26. The amendment was the product of a battle over race-conscious, or affirmative action, admissions policies in Michigan’s public universities that began in the 1960s and culminated with the Supreme Court’s 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Gratz v. Bollinger, 539 U.S. 224 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). Grutter held that “universities cannot establish quotas for members of certain racial groups” or give their applications preferential treatment. Grutter, 539 U.S. at 334. But the Court explained that universities could use more flexible standards that treated race “as a ‘plus’ factor in the context of individualized consideration.” Id. Proposal 2 took effect in December 2006, and provided a constitutional prohibition against race-conscious admissions. See Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary v. Regents of Univ. of Michigan, 701 F.3d 466, 470 (6th Cir. 2012).
Several interest groups and individuals, including Respondent Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“BAMN”), responded to Proposal 2 by filing suit in the United States District Court for the Eastern District of Michigan against then-Governor Jennifer Granholm, the Regents of the University of Michigan (“Regents”), the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. See id. They claimed that the proposal violated Equal Protection Clause of the Fourteenth Amendment and federal statutory law. Id. BAMN limited their complaint to address Proposal 2’s public education provision, but did not challenge other parts of the proposal. Id. Soon after BAMN sued, Michigan Attorney General, Bill Schuette (“Schuette”), and University of Michigan Law School applicant, Eric Russell, joined the lawsuit in defense of Proposal 2. Id.at 471.
In March 2008, the district court denied the Regents’ motion to dismiss and BAMN’s motion for summary judgment. Id.at 472; Coal. To Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F. Supp. 2d 924, 941, 950-58 (E.D. Mich. 2008). However, the court granted Schuette’s motion for summary judgment and rejected BAMN’s argument that the proposal violated the Equal Protection Clause. Id. at 90. The court also dismissed Russell from the case. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. V), 539 F. Supp. 2d 960 (E.D. Mich. 2008).
Finally, the Sixth Circuit reversed the district court’s grant of summary judgment in favor of Schuette and decided that portions of Proposal 2 affecting Michigan’s public institutions of higher education impermissibly alter the political process in violation of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VII), 652 F.3d 607, 631-32 (6th Cir. 2011). Schuette then sought review by an en banc panel of the Sixth Circuit. The panel agreed with the prior Sixth Circuit ruling and held that the provisions in Proposal 2 affecting Michigan’s public universities are unconstitutional. See Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary, 701 F.3d at 491. The Supreme Court granted certiorari to determine whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. See Brief for Petitioner at i, 1.
This case presents the Supreme Court with the opportunity to consider whether state constitutional amendments barring the use of race-conscious admissions policies in public universities violate the Equal Protection Clause. See Brief of Amicus Curiae American Civil Rights Union and the American Civil Rights Institutein Support of Petitioner at 28. Although this case may not determine the ultimate fate of affirmative action, it will contribute to the long line of cases that have shaped the scope of race-conscious admissions in the United States.
RACIAL PREFERENCES AND DIVERSITY ON CAMPUS
Many proponents of Proposal 2 argue that minorities do not need racial preferences to gain admission and succeed in higher education. See Brief of Amicus Curiae of Pacific Legal Foundation, Center for Equal Opportunity, American Civil Rights Foundation National Association of Scholars, Project 21, and CATO Institutein Support of Petitioner at 28. They point to the success of Proposition 209 in California, a ban on racial preferences in university admissions enacted in 1996. See id at 29. According to data collected from 1997 through 2012, the proponents claim that offers of admission to minority students have risen in the University of California system (“UC system”)—from 18.8% to 30.5% of all admissions offers. See id.at 30-31. The proponents also cite studies to show that minorities have a much greater chance of graduating from the UC system under Proposition 209 than under the previous system of racial preferences because minority students are more likely to be matched with a university where they can succeed academically. See id. at 36. Professor Richard Sander argues that students receiving significant racial preference in admissions at elite universities are more likely to receive lower grades and transfer out of difficult majors. See Brief of Amicus Curiae for Richard Sander in Support of Petitioner at 19-20. In Sander’s view, this is largely due to inadequate academic preparation before entering college. See id. at 19. He argues that public universities that implement programs to identify talented high school students from disadvantaged high schools are less likely to run into this problem. See id. at 17.
BAMN’s supporters counter that by combating biases in standardized testing and inequality in academic preparation before college, racial preferences in admissions aid universities in achieving diversity on campus, which benefits all students. See Brief of Anti-Defamation Leaguein Support of Respondents at 7. The Anti-Defamation League contends that a diverse student body promotes “personal growth by challenging stereotyped preconceptions, encouraging critical thinking, and helping students to communicate effectively with people of varied backgrounds, thereby preparing students to become good citizens in an increasingly complex, pluralistic society.” Id. at 7. The League’s view is that greater diversity in schools leads to a more diverse democracy and better participation in the increasingly global marketplace. See id. at 8. Additionally, they contend, race-conscious admissions procedures help minorities break into the business world and leadership positions after graduation. See Brief of Amicus Curiae of the Society of American Law Teachers ("SALT")in Support of Respondents at 14.
Supporters of Proposal 2, including Sander, argue that certain groups, namely non-Hispanic whites and Asians, are disadvantaged under systems of racial preferences. See id. at 5. Sander asserts that this is particularly egregious given that one of the Constitution’s core functions is to protect groups that have been historically disadvantaged and are politically underrepresented. See id. at 6. In Michigan, Sanders argues, Asian-Americans meet both of these criteria and yet are the most disadvantaged under a system of racial preferences in university admissions. See id.Other professors, including Professor Carl Cohen of the University of Michigan, argue that this well-known bias leads to outcomes where white applicants are three times more likely to be admitted to Harvard, Yale, Dartmouth, or Cornell than Asian applicants. See Brief of Professor Carl Cohen of the University of Michigan, Professor Robert Koons of the University of Texas and the Texas Association of Scholars as Amici Curiae ("Professors") in Support of Petitioner at 25.
In response to the claim that minorities in the UC system have succeeded post-Proposition 209, BAMN’s supporters point to the dramatic drop in underrepresented minorities at the most selective universities within the University of California system. See Brief for the President and Chancellors of the University of California as Amici Curiae in Support of Respondents at 3. For example, the President of the University of California asserts that underrepresented minorities at these campuses report feeling less respected than their peers at more diverse campuses. Id. at 5. Similarly, the Society of American Law Teachers (“SALT”) argues that without a significant presence on campus, underrepresented minorities feel marginalized and disengaged from learning. See Brief of SALT at 9. They may also experience racial isolation, SALT contends, which leads to students of color becoming “tokenized” and stereotyped as representative of whatever their racial norm is perceived to be. See id. at 9-10. In SALT’s view, although students associated with negative stereotypes may underperform because of awareness of these stereotypes, a robust community of minorities combats these effects. Id. at 10. On the other hand, SALT contends, a lack of diversity on campus negatively affects all students because it limits the types of ideas present in the classroom. Id. at 11.
ACCESS TO MODES OF POLITICAL CHANGE
BAMN’s supporters, including various States, argue that Proposal 2 unfairly disadvantages groups that attempt to enact legislation in their favor, and thereby violates the political-restructuring doctrine and Equal Protection Clause. See Brief for the States of California, Hawai’i, Illinois, Iowa, New Mexico, Oregon, and the District of Columbia as Amici Curiae in Support of Respondents at 32. Specifically, the States claim that the language of Proposal 2 requires groups seeking race-related educational policies to first amend the state constitution before race-conscious admissions policies can even be considered. Id. at 36. To do this, the States contend that minority groups must launch lengthy, expensive campaigns to convince the Michigan legislature or voters to amend the constitution; only after this can they lobby admissions committees to consider race-conscious admissions programs. Id. The States claim that these minority groups face a much higher burden than those lobbying for consideration of other diversifying factors, such as economic status or personal hobbies. Id. at 37.
Supporters of Schuette, on the other hand, argue that overturning Proposal 2 threatens the right of the people to govern themselves. See Brief of Professors at 6. Because voters enacted Proposal 2 and because the government cannot disregard the will of its citizens, Schuette’s supporters argue that the Court must respect Proposal 2 and the wishes of Michigan voters. See id.Additionally, the Judicial Education Project claims that a finding that Proposal 2 violates the political process doctrine would potentially invalidate any policy-making effort that implicates a minority group. SeeBrief for the Judicial Education Project as Amicus Curiae in Support of Petitioner at 14. Moreover, Schuette’s supporters argue that affirming the Sixth Circuit’s overbroad reading of the political process doctrine would eventually invalidate other state and federal statutes that eliminate the use of racial preferences to advance underrepresented minorities. Id. at 17.
The Court must decide whether Proposal 2, an amendment to the Michigan Constitution known as Section 26, violates the Equal Protection Clause; if it does not, the Court must decide whether the Proposal violates the political-restructuring doctrine. Schuette argues that under a “traditional’ equal protection analysis, Section 26 does not violate the Equal Protection Clause or political-restructuring doctrine, while BAMN claims that Section 26 does not promote equality and instead denies opportunities to certain minority students. See Brief of Petitioner at 23–28. The central issue is whether or not Section 26 violates the political-restructuring doctrine as set out in the landmark cases Hunter v. Ericksonand Washington v. Seattle School District. 393 U.S. 385 (1969); 458 U.S. 457 (1982). Schuette argues that Section 26 does not result from a discriminatory purpose or intent, so there is no racial classification and the political-restructuring doctrine does not apply; even if it does, he argues that admissions are not part of the political process. See Brief of Petitioner at 46, 39. BAMN counters that Section 26 creates racial classifications and that both Michigan and Wayne State Universities, two public universities affected by Section 26, have politically accountable admissions processes open to feedback and change from the public. Brief of Respondents, BAMN at 45; Brief for Respondents, University of Michigan at 15–23; Brief for Respondent, Wayne State University at 11–12.
DOES SECTION 26 VIOLATE THE FOURTEENTH AMENDMENT?
The Supreme Court applies strict scrutiny to (1) racial classifications and (2) facially neutral laws that result in racially disparate impacts and that are motivated by racial discrimination. See Brief of Petitioner at 14 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 213 (1995); Washington v. Davis, 426 U.S. 229, 239–42 (1976)). Schuette argues that Section 26 does not create a racial classification because it prohibits the State from classifying based on race or gender. See id. at 15 (quoting Coalition for Economic Equity v. Wilson, 122 F.3d 692, 702 (9th Cir. 1997)). In his view, Section 26 is facially neutral, which means that there would have to be racially-motivated discrimination behind Section 26 to find it unconstitutional. See id. at 24–25. Schuette claims that the Court has never inquired into voters’ motivations in an equal protection challenge because the reality of a secret ballot is that the court cannot ask voters what they were thinking when they voted. See id. at 14. Here, Schuette claims that voters had other reasons to vote for the amendment—namely, a desire to stop perpetuating “stereotype-reinforcing assumptions” and a desire to achieve fair treatment. See id. at 15-16.
Conversely, BAMN claims that examining voters’ motivations is unnecessary because Section 26 clearly draws a racial classification. See Brief of Respondents, BAMN at 44. BAMN asserts that the racial classification exists because the statute is obviously aimed at racially-conscious admissions plans. See id. at 45. Furthermore, in BAMN’s view, Section 26 directly denies minorities the right to petition for consideration in admissions processes, while other groups may do so. See id. at 38. Thus, BAMN argues that this inequality of opportunity is a direct violation of the Fourteenth Amendment. See id.
DOES SECTION 26 VIOLATE THE POLITICAL-RESTRUCTURING DOCTRINE?
The Court has relied on the political restructuring doctrine in the past to avoid placing onerous political burdens on minorities seeking political change. See Brief for the Respondent, Chase Cantrell at 22–23; Brief of the Petitioner at 7. The issue here is whether Section 26 imposes onerous burdens on minorities seeking political change by prohibiting the use of affirmative action policies in public universities. See Brief for the Respondent, Chase Cantrell at 22–23; Brief of the Petitioner at 7. The Court invoked the doctrine in Hunter and Seattle, which struck down laws that imposed onerous burdens on local minority efforts to achieve protection and equality through the political process. See Brief for the Respondent, Chase Cantrell at 22–25; Brief of the Petitioner at 29–31. Relying on Hunter and Seattle, the Sixth Circuit held that a political enactment denies individuals of equal protection if it has a racial focus and reallocates political power. See Brief for the Respondent, Chase Cantrell at 18.
DOES SECTION 26 HAVE A RACIAL FOCUS?
The first step in the political-restructuring analysis is to determine whether or not there is a racial focus in the political enactment. Schuette argues that in Hunter and Seattle, the laws at issue were struck down because they prevented the local governments from ensuring equal treatment and opportunity. See Brief of the Petitioner at 46–47. Here, he argues that there is no obvious racial categorization in the language of Section 26 and that it actually ensures equal treatment by not permitting race to be a factor. See id. at 46. In Schuette’s view, Section 26 does not prevent equal treatment or opportunity, but encourages it; additionally, he argues that after race-neutral admissions were instituted in California, African-Americans’ and Latinos’ grade-point averages and graduation rates improved. See id. at 49.
Respondent Chase Cantrell disagrees and argues that Seattle controls the outcome of this case because the law at issue in Seattle prevented desegregation busing programs, an initiative that aided in diversity and equal opportunity. See Brief for the Respondent, Chase Cantrell at 27–28. In Cantrell’s view, Section 26 prevents universities from considering race as a factor in admissions decisions, which reduces diversity and equal opportunity at the university level, and therefore makes the amendment racially-focused. See id. at 25–28. Cantrell claims that those seeking to change university admissions processes now have the burden of amending the constitution rather than directly lobbying for their interests. See id. at 28. In response to Schuette, BAMN argues that the UC system’s race-neutral policies have hurt minorities’ interests because admissions rates for African-Americans and Latinos have since dropped. See Brief of Respondents, BAMN at 49–51.
ARE UNIVERSITY ADMISSIONS PART OF THE POLITICAL PROCESS?
The second issue under the political-restructuring analysis concerns the reallocation of political decision-making power. Schuette argues that this issue is moot because university admissions are not part of the political process. See Brief of the Petitioner at 39. In his view, elected board members control admissions decisions, but the faculty members on decisions committees are otherwise unaccountable. See id. at 40. Moreover, Schuette warns that democratic processes will be damaged if the Court holds that university admissions are part of the political process. Id. at 44. In his view, state governments should decide state matters, such as the permissibility of race-conscious admissions policies, instead of yielding to federal courts and non-local authorities.Id. at 44. Eric Russell, a supporter of Schuette, argues that it is not just federalism at stake but also the Fourteenth Amendment. See Brief for Respondent Eric Russell, in Support of Petitioner at 32–35. Russell contends that the political-restructuring doctrine wrongly presupposes that individuals’ interests and goals are determined by their race; in fact, he claims, political processes do not apply equally to all races, and thus, prohibiting race-conscious admissions policies does not touch on a political process. Id. at 27–30.
BAMN counters that admissions policies are part of the political process because the Michigan Constitution directly empowers popularly-elected governing boards with the authority to alter admissions policies. See Brief for the Respondent, Chase Cantrell at 28–29. The University of Michigan and Wayne State University agree, arguing that petitioning elected officials on the governing board constitutes a political process. See Brief for Respondents, University of Michigan at 15–23; Brief for Respondent, Wayne State University at 11–12. Further, BAMN argues that the political-restructuring doctrine applies because Michigan cannot deny minority citizens the right to petition for their goals in the same way that other citizens can petition for their goals. See Brief of Respondents, BAMN at 35. In Cantrell’s view, the issue is not federalism, but whether the political process is being gerrymandered so that certain groups cannot access political change. See Brief for the Respondent, Chase Cantrell at 44–45.
In this case, the Supreme Court will consider whether a state can amend its constitution to prohibit race- and sex-based discrimination or preferential treatment in public university admissions decisions. The Court must determine if such voter-approved initiatives violate the equal protection guarantee of the Fourteenth Amendment. Petitioner Schuette argues that there is no racial classification in Michigan’s constitutional amendment, but Respondent BAMN believes there is such a classification because the amendment targets race-conscious admissions in Michigan public universities. Schuette does not believe that the Proposal violates the political-restructuring doctrine because college admissions are not a part of the political process. However, BAMN contends that by taking away minorities’ right to petition for consideration in admissions processes, the Proposal violates the political-restructuring doctrine. The Court’s ruling will have far-reaching implications on the diversity of public universities and racial minorities’ access to higher education.
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