Analysis Law and Policy

Michigan Amendment Feeds Roberts Court’s ‘Post-Racial’ America Mythology

Jessica Mason Pieklo

The Supreme Court has another chance to strike a fatal blow to affirmative action policies.

Last summer the Roberts Court passed on an opportunity to rule broadly that race-based college admissions policies violate the U.S. Constitution, but it did indicate that it was deeply skeptical of the practice. On Tuesday, the Supreme Court took another look at the use of race in university admissions in Schuette v. Coalition to Defend Affirmative Action, a case that asks whether an amendment to the Michigan Constitution banning the use of affirmative action policies in public university admissions violates the U.S. Constitution. If oral arguments are any indication, the Michigan ban may be just the kind of “race-blind” policy a conservative Roberts Court is looking to endorse.

The issue of race-based admissions policies and whether or not they are constitutional is one the Court has grappled with over the last decade. In 2003, in Grutter v. Bollinger, the Court held that the University of Michigan’s law school could consider race as one factor in its admissions process in order to create a diverse student body. But in 2006, in rejection of the policy upheld by the Court in Grutter, Michigan voters overwhelmingly enacted Proposal 2, an amendment to the state constitution that bans the use of affirmative action policies by its public universities. The amendment was challenged almost immediately. A lower court upheld the ban, but a federal appeals court reversed it. The court held that so long as affirmative action is still constitutional, by amending the Michigan Constitution to prohibit the use of affirmative action policies altogether, Proposal 2 distorts the political process by making it impossible for minorities to advocate for additional considerations in admissions. That distortion of the political process should raise red flags, the appellate court reasoned, since it runs contrary to decades of Supreme Court precedent that states laws, which restructure the political system to make it harder for a minority group to gain access to the political system, should be suspect for equal protection violations.

The Michigan amendment teed up perfectly for the conservative wing of the Roberts Court, with supporters effectively parroting the Chief Justice that policies that use race as a consideration are by their definition racially discriminatory. In defense of Proposal 2, lawyers for the State of Michigan opened their argument by acknowledging that “diversity on campus is a goal that should be pursued,” but told the Roberts Court the only issue it need examine is whether the U.S. Constitution allows Michigan voters to decide that affirmative action is not an option for public universities in the state. And the answer to that question, the lawyers argued, is yes.

To begin with, Michigan’s lawyers claimed, it is impossible for Proposal 2 to violate equal protection rights, because it specifically prohibits public universities in the state from treating applicants differently based on race. Second, the amendment doesn’t restructure the political system in violation of the U.S. Constitution, because it doesn’t create any “barriers” to equal treatment. Furthermore, even if it did inadvertently produce some barriers to accessing the political process, it is still constitutional, because there’s no evidence Michigan voters enacted the affirmative action ban intending to discriminate on the basis of race. In fact, they argued, because Proposal 2 also bans the use of gender preferences, the amendment actually levels the playing field by guaranteeing that a majority of the state’s population will no longer receive preferential treatment in university admissions.

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Justice Sonia Sotomayor allowed Michigan Solicitor General John Bursch approximately five minutes before challenging the state’s basic premise that Proposal 2 was about getting to “move past the day when we are always focused on race,” noting the history of Proposal 2 was tied specifically to the Court’s earlier decision to uphold a Michigan affirmative action policy. When Bursch responded that the amendment was inspired by other alternatives that could produce a diverse student body without considering race, like eliminating legacy admissions, Justice Sotomayor immediately pointed out that ending legacy admissions now while also cutting off affirmative action policies would be additionally damaging for minorities. She noted that finally minority admissions are increasing, and now that those individuals who went to college are having children, “you’re going to do away [with] that preference for them.”

Lawyers challenging the law ask the Roberts Court to apply a strict scrutiny standard to Proposal 2, the toughest look a court can give a law that touches on race, and strike the law. The idea that the measure is not grounded in race is absurd, they argued. At the time of the amendment, Michigan offered no other reason for such a policy, the measure was a campaign that was in direct response to the Court’s 2003 Grutter decision, and its supporters launched an entire campaign characterizing the measure as one that would prohibit public universities from considering race in their admissions process. Simply put, this case is about nothing else but race.

Naturally, the conservative wing of the Court found these arguments very suspect. Chief Justice Roberts aggressively challenged the idea that the amendment takes a benefit for minorities and then restructures the political process to make it more difficult for minorities to secure that benefit. For Roberts, it is “open to debate” whether these policies actually benefit minority groups. “Do we have to assume … that these definitely are beneficial?” Roberts asked. Shanta Drive, one of the attorneys arguing on behalf of the plaintiffs, the Coalition to End Affirmative Action, countered that 90 percent of African-American voters in Michigan voted against the ban, the Chief Justice retorted, “[t]here may be a difference between popularity and benefit.”

Justice Anthony Kennedy appeared to agree with Justice Sotomayor that the Scheutte case looked an awful lot like an earlier case before the Supreme Court, Washington v. Seattle School District No. 1, in which the Court struck down a voter initiative that prohibited mandatory busing designed to promote racial integration in public schools. In that case, the Court reasoned that laws that restructure the political process to create obstacles for a minority group to gain access to the political system are constitutionally suspect. While that may not be enough skepticism from Kennedy to strike Michigan’s ban, it could be enough to help craft a narrow ruling similar to the outcome in Fisher.

If there was a surprise in the arguments, it was that Justice Stephen Breyer, normally a reliable vote in the Court’s liberal block, appeared willing to uphold the ban, focusing the bulk of his attention on the question of when in the process the political restructuring doctrine would apply.

Justice Elena Kagan recused herself from this case, presumably because she was involved in it in some fashion while solicitor general. Kagan’s recusal means that if the Court were to split 4-4 on the policy, it would let stand the appellate court’s decision that struck Proposal 2, though the Supreme Court decision would be limited to this case. But that seems unlikely. Justices Antonin Scalia, Clarence Thomas, and John Roberts were clearly on the side of the state, and it’s safe to assume Justice Alito is as well. That means both Justices Anthony Kennedy and Stephen Breyer would need to join with Justices Ruth Bader Ginsburg and Sotomayor for the amendment to fall. Should the justices uphold Proposal 2, then we can expect to see similar measures in other conservative-run states.

Alabama, Arizona, Georgia, and Oklahoma all submitted briefs in support of the Michigan ban.

The Court won’t issue a ruling until this summer. But after Tuesday’s argument, the question may once again be, just how far is the Roberts Court willing to go in the name of its “post-racial” vision?

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