Asian-Americans, affirmative action, and the “political restructuring” doctrine: Does the doctrine work when there are minority groups on both sides of the issue?

April 22

Today’s Supreme Court decision upholding Michigan’s state constitutional amendment banning racial preferences in state university admissions turned on the “political restructuring” doctrine, which holds that shifting a decision on a public policy issue from one level or branch of government to another is sometimes unconstitutional if it disadvantages minorities. As Justice Sonia Sotomayor put it in her dissenting opinion, the doctrine applies in cases where the state “reconfigur[es] the existing political process… in a manner that burdened racial minorities.” In the 1982 Seattle case, the Court explained that the doctrine forbids “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Sotomayor argues that the amendment should have been invalidated because, by adopting a state-wide ban on racial preferences by referendum, the voters shifted the decision on affirmative action policies from university administrators and thereby disadvantaged minorities in the political process.

But, in reality, banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways.

What is true of affirmative action in college admissions is also likely true in many other potential political restructuring cases. In an increasingly diverse America, there are many different minority groups with a variety of differing interests. On most issues, therefore, there are likely to be minorities on both sides. There are even significant divergences between subgroups within minorities. For example, Cuban-American Hispanics have very different political views from Mexican-Americans and Puerto Ricans. Russian Jewish immigrants, on average, have different views from those of native-born American Jews. And there are many other such cases.

The fact that some other minority group might incidentally benefit should not prevent courts from striking down political restructuring in cases where the evidence shows that the change was adopted for the specific purpose of disadvantaging a particular racial or ethnic group (e.g. – a policy deliberately intended to reduce the power of the black vote). Indeed, such deliberate discrimination is already forbidden by other Supreme Court precedents. But as several justices emphasized in their opinions today, the political restructuring doctrine applies in cases where there is no such invidious intent. In such cases, there is no clear way to determine whether a restructuring that affects some minorities in different ways from others is an impermissible burden on minorities in general or not.

In my view, this conceptual problem strengthens the case for getting rid of the political restructuring doctrine altogether, as advocated by Justice Scalia in his concurring opinion. It underscores the doctrine’s incoherent and often arbitrary nature. But those who want to preserve the restructuring precedents need to address the issue of how to apply them in cases where there are minority interests on both sides. Today more than ever, such cases are likely to be the rule rather than the exception.

UPDATE: It’s interesting to note that Asian-Americans are not mentioned even once in any of the five opinions in today’s ruling (which include over 100 pages of combined text).

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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