Schuette v. Coalition to Defend Affirmative Action, which is now before the United States Supreme Court, illustrates all the treacherous crosscurrents in modern equal protection law.  The case involves a challenge to Michigan’s Proposal 2, which, on its face, amends the Michigan constitution by calling for an everything-blind standard that would effectively end affirmative action programs in the public space.  Its key provision reads:

(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

The language of this state constitutional provision of course tracks the language found in both Title II and Title VII of the Civil Rights Act of 1964, which deal with public accommodations and employment relations, respectively.  Consequently, the successful challenge in the lower court to this Proposal, at the very least, has to raise eyebrows. It is worth discussing some of the serious historical and analytical issues that this perplexing case raises.

Equal Protection in Principle

 I undertake this task with a certain degree of unhappy trepidation. I agree with neither the majority nor the dissent in the Sixth Circuit, and think that the Supreme Court should make a sharp break from its previous approach to this entire set of constitutional problems.  Let me say something of my views before turning to the particulars in the case.  As I see matters, the key distinction that should govern equal protection law rests on the fundamental distinction between the way in which the state runs its own affairs, and the way in which it legislates how private individuals and firms should be able to run theirs.

The argument behind this position starts by asking what the fundamental conception of the Fourteenth Amendment’s equal protection guarantee requires.  In answering this question, all too often the word “protection” drops out of the equation, so that the provision is treated as though it is a general guarantee of equality in all areas of human life.  But give the term “protection” its proper due, and it becomes clear that the provision, tucked in as it is after the Due Process Clause, is primarily concerned with the standard protections that all persons, whether or not citizens, should receive under the criminal law.  That protection runs in two directions – one towards the accused and the second towards his or her victim.  In the first case, this means that no person can be singled out for special prosecution under standards not applied to others. Second, the law cannot refuse to prosecute some people because it does not wish to extend its protection to particular victims of criminal behavior.  These are no small guarantees in a society rife with the risk of differential application of the criminal law.  For instance, the dangers that the Equal Protection Clause were intended to address reared their ugly head in the Old South after the disastrous 1876 decision in United States v. Cruikshank, in which the Court held that enforcement of the criminal code was to be left to the states themselves, even those with thoroughly corrupt racial politics.

Evidently, this parsimonious account reasons that there is no role for the Equal Protection Clause to play in dealing with the generalized distribution of government benefits.  This point is well known to students of property law. The great 1892 case of Illinois Central Railroad v. Illinois made clear how difficult it was to cobble together a public trust doctrine out of the raw constitutional materials. Further, among the public benefits that government distributes is K-12 education, which means that this rendering of equal protection guarantee throws Brown v. Board of Education into doubt.

Brown itself was much mooted on legal grounds, but socially the overwhelming weight of respectable opinion, then and now, was that segregation had to end.  But what was the legal rationale?  In 1954, no one thought that affirmative action in education was in the cards. Consequently, the consensus was that a strong decision in favor of a color-blind principle would create all the needed social gains without feeding red meat to the defenders of segregation.  But the political wars have gone decisively in the other direction, so that today affirmative action is pervasive in education and other areas of private life.  Indeed, I think that it is especially important to note the very high levels of support for these programs inside the private institutions that adopt affirmative action.  This institutional support gives at least some indication that the overall social benefit from these programs are large enough to quell doubts about any downside, such as a decline in the academic credentials of admitted students.  As a libertarian on matters of association, I think that these university decisions make it clear that the color-blind guarantees found in Title VII and other places were a mistake in large measure because they inhibited the affirmative action programs that had substantial support in the fifteen or so years after the passage of the 1964 Civil Rights Act.  Indeed, as a political matter I part company with Ward Connerly and others and think that private institutions should be able to choose their own racial policies, and that public institutions, although subject to some clear constitutional constraints after Brown, should be given some wiggle room as well.  I would therefore vote against Proposal 2.

Proposal 2

But by the same token, these views do not make Proposal 2 unconstitutional.  I am reluctantly persuaded that the majority of the Sixth Circuit got this issue wrong.  The Sixth Circuit’s first argument stemmed from its opening salvo, which compared the position of the person who seeks alumni preferences and the person who seeks to reinstate the affirmative action program.  The former has all sorts of informal avenues open to him and need not contend with overturning a constitutional provision.  The latter cannot use those options given the statute, and thus has impaired access to government.

This stick-figure account of racial politics after Proposal 2 ignores the many ways in which (as happened in Texas) defenders of affirmative action can switch to different formulas for admission that go by high school ranking or other criteria of the sort, which recently received a qualified blessing in Fisher v. University of Texas at AustinThese groups are politically active and highly astute.  It is hard to credit any claim that the bulk of work on this issue will be done by any individual student applicant when there are larger political forces at play.

The second half of the argument looks to decisions like Hunter v. Erickson, which announced the view that it was a per se violation of the Equal Protection Clause for the City of Akron, Ohio to amend its city charter to prevent its council from implementing any ordinance on the hot-button topic of racial, religious, or ancestral discrimination in housing, unless it first obtained the approval of the majority of Akron voters.  The clear concern here was that the popular voting sentiment would line up four-square against the fair housing law that the Akron City Council might wish to pass.

Proposal 2, however, does not seek to shift the locus of political power from the covered state institutions to the state legislatures, let alone to any group intent on undermining race relations with programs that have a disparate impact on black citizens.  Rather, it enacts a substantive constitutional provision that takes the issue out of ordinary politics altogether and results in a color-blind program that presents no political risk and contains no uncertain or hidden bias.  At this point, the question is why this provision runs off tracks if Title II and Title VII are constitutional.  One possibility is to shift the focus from Hunter v. Erickson to Reitman v. Mulkey (and indeed to the odd disposition of the Supreme Court in Hollingsworth v. Perry, the Proposition 8 Case). There, a color-blind rule that allowed all individuals to choose to whom to sell or lease property was struck down on the ground that it was tainted with racial animus because it had overturned the Unruh Act, which was a 1969 fair housing ordinance.

For my part, Reitman represents the worst of constitutional law.  The case indefensibly assumes that the motives of partisan supporters should doom a statute which is otherwise eminently defensible in principle, and which may well be defended by persons who think that various forms of racial discrimination are abhorrent, but also think that the principles of freedom of association are more important.  Fair housing laws do abridge freedom of association for all persons, regardless of race, and it would be frightening indeed if the racial preferences of some legislators would doom a statute that many people, myself included, think will lead to superior social outcomes.  If market institutions were not unconstitutional before the passage of the Unruh Act, they certainly did not become unconstitutional once the act was repealed.

To repeat, I think that Proposal 2 is a mistake, and would vote against it.  But I do not think that we have reached the point where colorblind legislation should be regarded as unconstitutional because of its supposed effect on the political process.  Any public institution that employs either a colorblind or affirmative action policy within the institutions that it supports and operates should be responsive to the will of popular majorities in a democratic society.  Where the state loses its power is in its ability to force private institutions to follow what the public dictates.  I think the endless array of fair housing laws are indeed unconstitutional except in those situations, which almost never arise, where a credible claim can be made that a given party has monopoly power in some given market.  That was the older rule that used a nondiscrimination rule to offset monopoly power, but never otherwise.  It is a long argument, for another day.  Subject to this qualification, the public/private distinction should have some real bite.  I believe that this issue will come back to the Supreme Court in some form no matter how the Court comes out in Schuette.

[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: Richard A. Epstein, Schuette v. Coalition to Defend Affirmative Action: The intellectual confusion that surrounds affirmative action today, SCOTUSblog (Sep. 9, 2013, 2:25 PM),