In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will review an eight-to-seven en banc decision of the Sixth Circuit holding that voter initiative Pro­posal 2 – which amended the Michigan Constitution to prohibit affirmative action – was invalid under the politi­cal structure theory of equal protection. After having de­clined in Fisher v. University of Texas at Austin to overrule Grutter v. Bol­linger, and essentially hold that racial affirma­tive action was unconstitutional, the Supreme Court will now have the op­portunity in Schuette to de­cide whether bans on ra­cial affirmative action are unconstitutional. Just as con­servatives hoped that Fisher would be used to over­rule Grutter, they now hope that Schuette will be used to overrule the po­litical structure strand of equal pro­tection juris­pru­dence adopted in Hunter v. Erickson and Wash­ing­ton v. Seattle School District No. 1.

Jus­tice Ken­nedy will proba­bly cast the de­ciding vote in what is likely to be a five-to-three reversal or a four-to-four affir­mance (with Justice Kagan hav­ing recused herself as she did in Fisher, pre­sumably due to prior involvement in Schuette as So­licitor Gen­eral). Justice Kennedy seemed sym­pathetic to the political structure theory in Romer v. Evans, but also seemed sympathetic to the initiative process in Hollingsworth v. Perry. Because the Sixth Circuit ad­dressed only the politi­cal struc­ture theory in Schuette, the Supreme Court could reverse and re­mand for con­sider­ation of the plain­tiffs’ tra­di­tional discrimi­na­tion claim – a claim that the dis­trict court did reject on the mer­its. That would nominally be a compromise resolu­tion, echoing the halfway approach that Jus­tice Ken­nedy adopted in his Fisher majority opinion remanding for a more stringent ap­plica­tion of strict scru­tiny.

It is hard to know who to root for in this debate, because the political struc­ture theory seems both doubtful and desirable. How­ever, there may be a better way to con­ceptu­alize what is going on.

1

The political structure theory of equal protection seems doubtful because it rests on the un­tenable assumption that a racially focused deviation from a neutral political process could con­stitute an equal protection violation. But there is no such thing as a neutral political process. Be­cause racial groups have never been similarly situated in the United States, any way of structur­ing a political process will confer differential bene­fits and burdens on different races. In Hunter (fair housing legislation) and Seattle (busing to reduce de facto school segre­gation) the Supreme Court invali­dated voter initiatives that essentially required supermajorities for particular policies that bene­fitted racial minorities, and mere majorities for other policies that benefitted whites. But be­cause racial majority and minority voters had equal access to the voter initiative process, identi­fica­tion of a “neutral” political structure was simply an artifact of the level of generality at which the equality prin­ciple was applied. If not wholly incoherent, the po­liti­cal struc­ture the­ory of equal protec­tion has become noticeably problematic.

But the political structure theory also seems desirable. The Supreme Court majorities in Hunter and Seattle understood the conceptual difficulties inherent in political structure theory, and they chose to adopt the theory nonetheless. They detected a level of racial discrimination in the challenged enactments that would place racial minor­ities at a con­tinuing political disad­vantage. In addition, the dilution of mi­nority voting strength by those enactments was too remi­niscent of the historical disenfranchisement of minority voters to let it slip silently through ex­isting doctrinal cracks. Accord­ingly, the Court chose to ar­ticulate a theory of equal protec­tion that was more receptive to the anti-subordination founda­tions of the Recon­struction amendments than it was to a semblance of doctrinal coher­ence. Coherence aside, the politi­cal struc­ture theory of equal pro­tection re­sists a level of popu­list discrimina­tion that has become noticea­bly problem­atic.

I think the political structure strand of equal protection jurisprudence is best understood as an effort to compensate for an unacknowledged conceptual deficit in the standard that the Su­preme Court applies under the Equal Protection Clause. In Washington v. Davis and Personnel Admin­istrator v. Feeney, the Supreme Court adopted a stringent intentional discrimination test for equal protection claims that tolerated signifi­cant racial disparities. As a result, there is a lot of doc­trinal space in which subtle discrimi­na­tion can flourish. This is largely deliberate, reflecting the relatively low priority that incon­venient racial equality is typically accorded by United States culture. But sometimes the culture can go too far. Judge Cole’s majority opinion for the en banc Sixth Circuit in Schuette seems to view the politi­cal structure theory as a check on such excesses. He quotes Seattle for the propo­sition that the type of racial focus embedded in Proposal 2 pre­cludes any additional need for “a particular­ized inquiry into motivation.” Logically, this under­standing of racial focus could even jeopardize the elusive “mere repeal” rule that the Court found to be outside the scope of the political structure doctrine in Crawford v. Board of Educa­tion.

2

As a practical matter Proposal 2 seems designed to benefit whites at the expense of most racial minorities. Like recent redistricting, voter ID, and immigrant stop laws, the racial purpose of Proposal 2 is hard to deny. But doctrinally, such motivation is unlikely to constitute an equal protection violation . . . unless a political structure exception to the intent requirement can be in­voked. In par­ticularly troublesome cases, racially focused political structure concerns about bur­dens imposed on minorities can then serve as cognizable proxies for the subtle dis­crimination that eludes constitu­tional recognition in more typical cases. Eight of the fifteen judges on the en banc Sixth Cir­cuit saw Proposal 2 as presenting such a particularly troublesome case.

As a theoretical matter, Proposal 2 seems even more invidious. An observation that I made in an article about the California Proposition 209 anti-affirmative action initiative seems equally pertinent here. Proposal 2 is relevant only to affirmative action that has survived the strict equal protection scrutiny of Grutter – other affirmative action plans would already be un­constitutional. As a result, we know that the affirmative action programs banned by Proposal 2 constitute the least restrictive ways to advance the compelling governmental interest in promot­ing educational diversity. When adopting constitutional affirmative action programs, the political process promotes diversity by allocating resources to racial minorities in order to rem­edy the lingering effects of past discrimination. Proposal 2, however, takes those resources and redistrib­utes them to the white majority. Proposal 2 is, therefore, an affirmative action program for whites. It is indistin­guishable from other racial affirmative action programs – except that it seeks to supplant a reme­dial resource allocation scheme with a scheme that restores the alloca­tion of resources pro­duced by prior discrimination. If Proposal 2 were serious about elimi­nating racial preferences, the first thing Proposal 2 would do would be to invalidate itself.

I usually favor deference to the political process in affirmative action cases, because the bare Fourteenth Amendment requirement to accord “equal protection” does little to yield a judi­cially manageable standard by which the constitutionality of affirmative action could be judged. But deference to a political process that benefits the white majority by adopting Proposal 2 does not seem appropriate when the Supreme Court refuses such deference to affirmative action plans that benefit racial minorities. As Professor Farber notes in his Constitutional Law casebook, the deferential Davis/Feeney intentional discrimination standard applied in traditional discrimination cases tolerates indifference to the burdens imposed on racial minorities by programs that benefit the white majority. However, the non-deferential strict scrutiny applied to affirmative action pro­grams that benefit racial minorities does not tolerate such indifference to the analogous burdens that are imposed on whites. As a result, legacy preferences that disproportionately benefit white alumni children are constitutionally valid, but racial preferences that disproportionately benefit minorities are presumptively invalid. The fact that the former submerge a racial correlation that the latter make explicit seems largely irrelevant to the conclusion that the Supreme Court has constitution­alized a selective indifference to race where minorities are the ones disadvantaged.

3

But all of this pales in comparison to the real point I want to make about Proposal 2. Uti­lizing the footrace metaphor invoked by Judge Cole in his en banc majority opinion, there is no reason to tolerate a ban on constitutional affirmative action programs unless one thinks that racial minorities can make up for the multi-century head start obtained by whites without requiring whites to slow down enough to let minorities catch up. If one believes that mi­norities can catch up to whites while the white head start remains unabated, one necessarily believes that minorities are more qualified than whites in the race for societal resources. However, it is unlikely that such a be­lief in the racial supremacy of disadvantaged minorities is widely shared by the opponents of affirm­ative action. What is more likely is that affirmative action opponents simply do not much care whether minorities ever catch up, because whites are simply more entitled to societal re­sources than are racial mi­norities. And that, of course, describes a different type of racial su­prem­acy – one that is more plausible and, sadly, more familiar.

Girardeau A. Spann is the James and Catherine Denny Professor of Law at Georgetown Law. 

[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 inSchuette.  However, the author of this post (like all of the contributors to this online symposium) is not affiliated with the law firm.]

 

Posted in Schuette v. Coalition to Defend Affirmative Action, Affirmative action symposium, Featured

Recommended Citation: Girardeau Spann, Schuette symposium: Racial supremacy, SCOTUSblog (Sep. 11, 2013, 1:29 PM), http://www.scotusblog.com/2013/09/schuette-symposium-racial-supremacy/