Affirmative Action at the Supreme Court (Again)

This case arose in the wake of the Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger. In 2006, voters in Michigan passed a constitutional amendment to prohibit both discriminating against and granting preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin. After a series of lower court rulings, the Sixth Circuit Court of Appeals struck down the provision as it applies to public education. As the brief for Schuette correctly notes:

It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race or sex.

To understand the Sixth Circuit’s reasoning, one needs to understand something called the political restructuring doctrine. This was laid out in a 1982 decision, Washington vs. Seattle School District. The Court ruled that a political enactment deprives a minority of equal protection when that law (1) has a racial focus that targets a policy that works to the benefit of that minority and (2) reallocates political power by making it more difficult for that minority to achieve their goals through the new process.

The 6th Circuit essentially ruled that college admission boards, university presidents and provosts were free to challenge race or sex-based admission policies, but the voters of Michigan held no similar rights. Let us be clear here: affirmative action as it exists today and especially as it exists in Michigan university admissions policies is not a policy of equal treatment, but a policy of preferential treatment. As several studies have pointed out, this has been an on-going controversy in Michigan and elsewhere. In response to the original pre-Gratz and Grutter cases, changes in the admission policies, when left to the universities themselves, only made the problems worse. Last term, the Court heard the Fisher case out of Texas that had a lot in common with these Michigan policies and the end result was somewhat ambiguous, but the playing field was made easier for Fisher to follow through on her suit.

Another point is that to violate equal protection under the law, any statute must first classify a group and then treat that group differently without justification. Clearly, groups are classified in the Michigan amendment- racial groups, ethnic groups, foreigners, and sex. But, the main question is whether those groups are treated differently without justification as a result of the Michigan amendment? Clearly, they are not. In fact, the state constitutional mandate is simply that race, sex, ethnicity and national origin cannot be a consideration. Period! Previous Court jurisprudence in this area involved laws designed to obstruct equal treatment while the Michigan law is designed to prevent preferential treatment. The actual wording of the Michigan amendment prohibits the state from racial classification yet the opponents state that this is, in and of itself, racial classification thus leaving the only impression that opponents to the Michigan law condone racial preference. Wouldn’t that constitute an equal protection claim?

One needs to question, as the respondent in this case- the Coalition- do, whether the purpose of enactment of the amendment was racially motivated. First, the Supreme Court has never inquired into the alleged racial motivation for a voter-initiated constitutional referendum and has largely left that to the lower courts to make that determination. Even then, to be invalid, it has to be a “but for” situation. That is, the legislation or referendum has to be invalidated only because of a racial or sexual animus. For example, one can argue, as the lower courts determined, in the Romer decision, the law at issue was motivated by an animus against homosexuals and served no legitimate state interest. One can argue that the Michigan law can equally be viewed this way ONLY IF affirmative action programs are designed to the exclusive advantage of minorities in the first place. In other words, admissions should not be color blind, but racial preferences should be the law of the land and the only means to correct past inequities.

As the lower courts determined in their hearings, there were a myriad number of reasons for passing this referendum. Some stated that people expressed support because they thought that affirmative action was harmful to minorities. Others said affirmative action perpetuated a stereotype of minorities. Others noted that they were denied admission because they were not a protected class. And still more suggested that by statutorily eliminating race, sex, ethnicity and national origin, Michigan colleges would be encouraged to develop socioeconomic-based admission policies in an effort to diversify the college campus. There is a lot of support among academics that this latter method, if there is to be some form of affirmative action, should be the preferred criteria. In short, the District Court found very little, scant evidence of animus against any minority. The District Court stated that the proposal’s history did not suggest discriminatory intent. And remember: appeals courts generally defer to the findings of the District Courts- they do not retry the cases.

Now, because a law or proposal is drafted and presented as being non-discriminatory or not having a discriminatory intent, yet it unintentionally discriminates, does that invalidate the law? One has to look at this amendment in the other contested areas- public employment and government contracting. And here, one can find no such claims of actual discrimination in either employment practices or the awarding of government contracts. In the case of employment practices, the most qualified candidates for the job should be hired and the most qualified of current employees retained and promoted regardless of their inclusion in any minority group or not. Even if they felt they were wronged because of their minority status, the Michigan law does not block them from filing a complaint or keep them from petitioning the EEOC. Likewise, with contracting, it is awarded to the lowest bidder who can do the most efficient work in the shortest time regardless of that contractor’s minority status. That is, in these other areas, color blindness and policies designed to maintain color blindness have not hurt minorities in Michigan. We cannot know how this will work in college admissions because the courts have intervened and prevented enactment of this law with respect to the Michigan public college system. But if history specific to Michigan in these other areas is any indication, the voters and residents of Michigan are being thwarted in their efforts to create color blindness.

Other states have enacted similar bans on affirmative action in college admissions: Texas to some degree, Florida, California (in 1996). If one believes that elimination of such programs is of benefit to whites, they are mistaken. The only ethnic group which gained any admission advantage were Asian-Americans. But, if one looks at these states, one can tell they have large Hispanic populations. Even though black enrollment decreased, it may not have been due to the elimination of affirmative action per se, but to demographic dynamics- namely, the rising Hispanic population at the expense of blacks and whites.

The Court has previously ruled that diversity on the college campus is an advantage, although one has to question why this is not so at so-called all-black colleges, but that is another story altogether. Taking them at their word, the systems at place in both Florida and Texas where the top 10% or 20% of students in a graduating class- regardless of race- are admitted is likely one reason why college diversity in those states fares better than in California. There is the obvious problem with this method, however, that should be mentioned. Not all high schools are actually equal. For example, SAT scores are still the primary test or predictor of college success. The students in the top 10% high school A may average 1475 while students in the top 10% at high school B may average 1800. In fact, 30% of students at high school B may have scores of 1475 or higher. Are they to be not considered in the interest of diversity? Or are they relegated to the waiting list until all high school scores and graduating class ranks are in? Still, this system when used seems to mitigate the drop in black enrollment rates that were seen in California.

The bigger question is the cost to society. On the one hand, proponents of affirmative action argue that lack of a diverse student body creates segregated campuses which causes segregated work forces which causes segregated neighborhoods. Opponents of affirmative action argue that we are a color-blind society and that these programs perpetuate a stereotype of minorities in that they need help in gaining admission and cannot rely on their performance.

The even bigger question is the role of higher education. Is it to be a microcosm of some Utopian society where everyone gains an appreciation of each other’s “culture” and ideas, hold hands and sing “Kum-Baya” followed by “We Shall Overcome?” Or is its role to prepare the graduate to become a functional member of society by- yes- being exposed to competing ideas, but also being prepared to be employed? Considering that 75% of colleges offer remedial courses and 28% of incoming freshmen are required to take these classes, one can make a case that affirmative action programs, among other problems, have resulted in a “dumbing down” of higher education (for lack of a better word). But, is it a college’s duty to correct the many wrongs in our public K-12 educational system in the name of diversity?

As for the Coalition to Defend Affirmative Action, first let us get their correct name down: the Coalition to Defend Affirmative Action, Integration and Immigration Rights, and Fight for Equality By Any Means Necessary, which is admittedly a mouthful and takes in a lot of Leftist aspirations. Formed in 1995 in response to the Bakke case in California, it soon turned its eyes to Michigan where they have been an instigator on college campuses for affirmative action programs. They are active in this case because they argue that a Supreme Court decision in favor of Michigan would affect similar measures adopted, but on hold, in California and Washington. Thus far, this organization has thwarted similar ballot initiatives in Arizona, Missouri, Oklahoma, but failed in Nebraska and Colorado. Currently, their website is adorned with a banner asking people to sponsor a student for a march on Washington on October 15th.

As for the Court’s decision in this case, there was clearly no racial animus in suggesting and putting the referendum on the Michigan ballot which 58% of voters approved. One fully realizes that a state cannot pass any referendum whose purpose it is to disadvantage a minority. Once race or ethnicity is considered, strict scrutiny applies to the action by the state. There must be a compelling state justification for the action for it to prevail. What was Michigan’s justification for passing the referendum? It was to remove discrimination and preferences in college admissions, among other things. To play devil’s advocate (I am an opponent of affirmative action, or what it has become), that theory and rationale sounds great, but what are the practical effects? Would eliminating affirmative action programs in admissions actually lead to a decrease in minorities on campus and a less diverse student body- something the Court advocates?

One can expect the liberal wing of the Court to decide against Michigan. Scalia, Thomas and Alito are staunchly against affirmative action. John Roberts has been skeptical of affirmative action which was especially evident in last term’s Fisher case out of Texas. He basically argued for some critical mass when affirmative action programs had reached their desired goal lest courts start to micromanage college classes. Additionally, in the Seattle School District case, he ruled against a voluntary desegregation program. One can count him in with the conservatives. That leaves Kennedy. If his questioning and decision in the Fisher case is any indication, he tilts towards the Roberts view (although the end result in Fisher is considerably different from the possibilities here). In Fisher, he echoed concerns about maintaining campus diversity while also worrying about at what point affirmative action should end- that is, when critical mass is reached. In the end, he sided with the conservative wing.

Given the fact the referendum is racially, ethnically and sexually neutral, and constitutionally prohibits discrimination, nor does it limit or prohibit remedies in the cases of possible alleged violations, a strong case can be made that the Michigan constitutional amendment simply furthers and buttresses Equal Protection. Remember that 58% of Michigan voters, including 14% of black voters, approved the measure. This was not an attempt to “roll back the clock,” but an attempt to correct a wrong- that of preferential treatment because of race, ethnicity, or gender.