Michigan is back with affirmative action fight

Reporter October 13, 2013

One way to think of the affirmative action case at the Supreme Court this week is like this: How can a state constitutional amendment banning the use of race violate the U.S. Constitution’s prohibition on racial discrimination?

But here’s a second: If the Supreme Court has found that limited racial considerations in university admissions are allowed, can a state’s voters forbid minorities from trying to convince political leaders that it’s a good idea?

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

Those competing arguments await justices in the case of Schuette v. Coalition to Defend Affirmative Action, the court’s second look at affirmative action in higher education in a year. It concerns an amendment to the Michigan constitution passed by 58 percent of the state’s voters in 2006.

The case raises an intriguing third question as well, one that is not a part of the official proceedings: Do the arguments above expose an ideological difference between judges chosen by Democratic presidents and those nominated by Republicans?

That was what happened when the full U.S. Court of Appeals for the 6th Circuit in Cincinnati considered the Michigan amendment. Eight judges chosen by Democratic presidents said the amendment restructured the political process in a way that singled out minorities for harm and struck it down.


University of Michigan students hold signs as they participate in a Freeze Out rally to promote diversity at the Diag. (Melanie Maxwell/AP)

Seven judges nominated by Republicans said it was ridiculous to believe a mandate for colorblind treatment of college applicants offended the 14th Amendment’s guarantee of equal protection.

The relevant part of the amendment being addressed by the Supreme Court says the state’s public colleges and universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”

The initiative that amended the state constitution was “democracy in action,” says Michigan’s Attorney General Bill Schuette, a Republican. (The case that bears his name is often mispronounced; during political campaigns, Schuette has reminded voters that it’s like “shoe + T,” and now his Twitter handle is @SchuetteOnDuty.)

“It’s fundamentally wrong to treat people differently on the color of their skin,” Schuette says.

While the Supreme Court, in another case from Michigan — Grutter v. Bollinger — said that race may be considered as part of an “individualized, holistic review of each applicant’s file,” everyone agrees the court didn’t mandate it, Schuette argues.

Michigan voters were thus simply making a policy decision that affirmative action was not for them, as has California and a handful of other states, Schuette says.

But the slim 6th Circuit majority said there is a difference between not using affirmative action and banning it in the state constitution. The latter violates the principle that minorities must be allowed to fully participate in creating laws and that “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them,” Circuit Judge R. Guy Cole Jr. wrote.

His comparison was that while residents of Michigan’s Upper Peninsula may lobby decision makers to grant preferences to their underrepresented students, minority groups would have to change the constitution before even having a chance to advocate racial considerations.

Mark D. Rosenbaum, an ACLU lawyer who will argue for the challengers, said the Michigan constitutional amendment creates “a racial divide within the political process itself.”

The concept goes back to a Supreme Court footnote famous enough to have its own Wikipedia entry. In the 1938 decision in Carolene Products v. United States , Justice Harlan Stone wrote in Footnote Four that courts must give heightened scrutiny to laws that “curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”

The Supreme Court has used that principle in two cases, striking down a 1960s Akron, Ohio, amendment that said housing discrimination laws must be put to a citywide vote and a school-busing case from the state of Washington in 1982.

Still, many experts say the Michigan challengers have a distinctly uphill climb. The U.S. Court of Appeals for the 9th Circuit, for instance, upheld California’s ban. And this case comes before a Supreme Court deeply skeptical of racial remedies.

Schuette said those in the courtroom Tuesday will likely hear repeated references to Chief Justice John G. Roberts Jr.’s admonition in a 2007 decision that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Schuette, a former congressman and a former judge, was asked about the partisan split on the 6th Circuit.

“It was very interesting, wasn’t it?” he said. “To not have this discussion would be a bit disingenuous. I was kind of surprised, kind of not. All these judges and justices, let’s face it, have a pedigree, and that’s okay.

“You don’t get to be, and probably shouldn’t, a judge or a justice without some type of relationship with somebody of some political philosophy that’s then captured by a political party.”

Members of the judiciary — including the five justices of the Supreme Court nominated by Republican presidents and the four chosen by Democrats — hate talk of partisanship. And it is true enough that in the vast majority of cases, ideology has no application at all.

But for what it’s worth, only three of the Democratic-nominated justices will be hearing the case: Justice Elena Kagan has recused herself. While justices almost never give a reason for recusal, it is most likely that she took a hard look at the case while she was serving as President Obama’s solicitor general.

If so, she decided that this was a case in which the federal government did not have an interest. While the Obama administration was an active advocate for the continuing need for affirmative action in last term’s Fisher v. University of Texas — in which the court made no change to its Grutter decision but sent Texas’ plan back for more critical judicial review — it has never taken sides in the Michigan fight.

For previous High Court columns, go to washingtonpost.com/fedpage.

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