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

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.