Melissa Hart is an Associate Professor of Law and the Director of the Byron R. White Center at Colorado Law, University of Colorado Boulder.
I do not like the Schuette case. Of course the Supreme Court had to take it. A provision of a state constitution had been declared unconstitutional under the federal Constitution, and the Sixth Circuit’s decision created a direct conflict with an earlier decision of the Ninth Circuit. It would have been very strange if the Court had declined review. But the fact that the Court took the case doesn’t mean it has to spend much time on it. This is not a case that calls for a big decision. The smaller the better, in fact.
At first glance, Schuette might look like it is a case primarily about affirmative action. The question presented — “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions” – certainly sounds like it. One of the respondents calls itself the Coalition to Defend Affirmative Action By Any Means Necessary. And the amicus briefs submitted on both sides spend considerable time debating the merits of race-sensitive admissions policies. But the case that has come to the Supreme Court really is not a case about affirmative action.
The equal protection issue in the case is, instead, whether the passage of Proposal 2 violated a rarely used doctrine called the political restructuring doctrine.
Here is the crux of the respondents’ argument, accepted by the Sixth Circuit: if an applicant to the University of Michigan believes that legacy status or some other non-race-related quality should be taken into account in admissions, he can petition the Board of Regents to include that quality as a factor to be considered in admissions. If a person of color believes that race should be taken into account in admissions, he can no longer ask the Board of Regents to adopt that policy, but instead must seek an amendment of the state constitution. Moving the political power from the Regents and other university decision-makers to the voters was unconstitutional because it made a significant change in the ordinary political process, and did so along racial lines. The Sixth Circuit concluded that, under the Supreme Court’s opinions in Hunter v. Erickson and Washington v. Seattle School District No. 1, this kind of shift in decision-making authority violated the Equal Protection Clause.
That is not to say affirmative action is irrelevant to this case. There are important questions about the meaning of equal protection and its relationship to affirmative action that underlie the debate about the political restructuring doctrine. The petitioner and his amici argue that the Michigan law promotes equal protection by prohibiting affirmative action, and therefore cannot violate the Equal Protection Clause under the theory of political restructuring. The respondents, by contrast, argue that equal opportunity affirmative action policies are antidiscrimination measures designed to secure equal protection of the laws. Because these policies are antidiscrimination laws, this argument goes, the effective amendment of those laws to shift political power from more local to more remote decision-makers fits squarely within the political restructuring doctrine.
Certainly many of the amici who filed in support of the petitioner in this case are hopeful that the Court will take this opportunity to declare race-sensitive admissions policies unconstitutional. The Court does not need to – and absolutely should not — address this question to decide this case. Just a couple of months ago, in Fisher v. University of Texas, the Court affirmed the holding in Grutter v. Bollinger that consideration of race in admissions is constitutionally permissible. It would be totally inappropriate for the Court to revisit that question in this case and I don’t believe that it will.
Nonetheless, it is also true that the Court’s affirmative action decisions provide perhaps the best evidence we have of what will happen with this case. At least four of the nine Justices believe that the Constitution does not permit race-sensitive admissions policies. It is at best implausible that those Justices will find that the political restructuring doctrine in fact requires these policies. The question then becomes, can Justice Kennedy be convinced that the political restructuring argument should trump his uneasiness about affirmative action? Not likely.
There are some good arguments that Michigan’s Proposal 2 is constitutionally infirm. The amicus brief submitted by the Leadership Conference on Civil Rights et al. does an especially nice job of explaining why laws enacted through popular vote should be carefully scrutinized when their impact falls particularly hard on people of color or other protected groups. The direct democracy of the ballot initiative process does not invite reasoned or fact-based debate. Instead, when measures are submitted for popular vote, they are debated through advertising campaigns and political rallying. Given the divisive politics of race that surround the affirmative action debate, we should be concerned about laws like Michigan’s Proposal 2.
But the Supreme Court is not going to affirm the Sixth Circuit’s decision. Given that reality, what should a decision from the Court look like? How can the Supreme Court keep it small? Here are some suggestions:
1. The Supreme Court could conclude that the majority was mistaken in applying the political restructuring doctrine to these facts because this really was not a shift from one level of political decision-making to another.The Sixth Circuit’s decision rests heavily on the idea that admissions decisions in Michigan were, prior to the enactment of Proposal 2, made at the political level of the public universities’ popularly elected governing board members. It was by taking decision-making potential out of the hands of these politicians and moving it to the more remote level of the popular electorate that Proposal 2 ran afoul of the political restructuring doctrine. The dissent argues that Proposal 2 actually took decision-making authority out of the hands of unelected administrators – school admissions officers and faculty – and put it into the political process. If the impact of Proposal 2 is seen through that lens, it does not implicate the political restructuring doctrine.2.The Supreme Court could explain that the political restructuring doctrine only applies to cases in which the state has blocked laws against race discrimination by adding burdensome hurdles to passage of those laws that don’t apply to passage of other laws. This was what happened in Hunter. This is not what happened in Michigan. Proposal 2 did not block any laws against race discrimination. Instead it simply eliminated one constitutionally permissible approach to achieving the state’s legitimate goal of achieving diversity in higher education.This approach might require the Court to say that the Sixth Circuit misunderstood the political restructuring doctrine when it concluded that any law related to race cannot move political accountability from one decision-maker to another. The Court would not have to overturn the political restructuring doctrine; only to conclude that the Sixth Circuit misapplied it.
Neither of these options requires significant re-evaluation of any Supreme Court precedent. Indeed, in either case, a per curiam reversal would fit the bill. The Sixth Circuit made a mistake, and the case cries out for error correction, and for an opinion with as much splash as the Court’s occasional error-correction decisions generally receive – none.
[Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in Schuette. However, the author of this post (like all of the contributors to this online symposium) is not affiliated with the law firm.]