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.
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.
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.
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.]