The path from a federal government of limited powers to today’s leviathan is littered with familiar mileposts: the Seventeenth Amendment’s removal from state legislatures of the power to appoint senators; Wickard v. Filburn‘s blessing of the modern regulatory state; Chief Justice Roberts’s discovery within the Affordable Care Act of a “tax” that even its proponent-in-chief disavowed.

Given the fundamental question it poses regarding an electorate’s right to amend its own state constitution, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight For Equality By Any Means Necessary (BAMN) has the potential to be another such marker.

Schuette arises from various interest groups’ efforts to defend the use of race in Michigan’s public-university admissions against the overwhelming desire of state residents to remove it as a consideration.  The case is a direct outgrowth of the Court’s 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger, which struck down the University of Michigan’s assignment of extra admissions “points” to African-American undergraduate applicants (Gratz), but approved the Law School’s cagier practice of considering race as part of a “holistic,” individualized review process (Grutter).  Recognizing a potential dodge when they saw one and knowing their university administrators and faculty did, too, Michiganders in 2006 went to the polls and approved the Michigan Civil Rights Initiative (MCRI) by a margin of fifty-eight to forty-two percent.  The measure amended the state constitution to prohibit all use of race in public-university admissions, as well as in public contracting and employment.

A coalition of African-American student groups, faculty members, and public-sector labor unions immediately ran to federal court to have the MCRI declared a violation of Equal Protection.  (Actually some ran earlier to the state Board of Canvassers, where they threw chairs and overturned a table in breaking up a meeting called to place the measure on the statewide ballot).  Last November, MCRI opponents found an ally in an eight-to-seven majority of the en banc Sixth Circuit, which invoked the “political process” doctrine of Hunter v. Erickson and Washington v. Seattle School Dist. No. 1 to invalidate the MCRI, finding that it unlawfully disadvantaged African Americans by placing decision making over a racial matter at a more distant and politically remote level.  Michigan Attorney General Bill Schuette sought and was granted certiorari.

Leaving aside that the Ninth Circuit in 1997 upheld a virtually verbatim California constitutional amendment against a similar challenge – the Supreme Court, after all, exists in part to resolve such splits – there are fundamental problems with applying Hunter and Seattle to the MCRI.  For one thing, the doctrine would appear inapplicable on its face, since in practice it is in some sense easier to amend Michigan’s Constitution than to secure changes in admissions policies through the byzantine levels of elected boards (with staggered member terms) and appointed bureaucracies standing between the citizenry and admissions decision-makers.  The merits briefs filed by Michigan’s three flagship universities make this clear, setting forth at length the civics-book version of how each sets its admissions criteria – but downplaying the fact that in practice, such rules are adopted and enforced by the faculty, who by design are completely insulated from political pressure.

Thus, one university not only describes the formal process by which its admissions criteria may be amended, but repeatedly downplays its former dean’s candid admission that any attempt by its elected board to actually wield that power “would precipitate a constitutional crisis” with the faculty.  The university assures the Court that the ex-dean (of its law school, no less) testified “with limited knowledge,” and “was not competent to answer legal questions as to University admissions policy.”

Schoolhouse rock, indeed.

Meanwhile, another argues that its admissions processes are “political” for Hunter/Seattle purposes in part because citizens can show up at its regents’ periodic board meetings and voice their “thoughts, concerns, and requests” on any topic, including admissions policies, during the designated public comment section at the end of each.  Of course, on any given fall Saturday, tens of thousands of football fans in Ann Arbor and East Lansing have an identical right to voice their “thoughts, concerns, and requests” to the officiating crew – with an equal chance of having them actually adopted.

The universities’ views show the degree to which Schuette, while ostensibly involving an equal protection issue, also raises a fundamental structural question about interest-group capture of state-level governmental units, and what citizens lawfully may do about it.  Professing neutrality, the schools actually have worked to advance the cause of the MCRI’s opponents virtually from the beginning, in late 2006 even cutting a deal with Schuette’s predecessor and others to enjoin the MCRI from taking effect for six months, so as to obtain one more cycle of race-conscious admissions.  As the Sixth Circuit observed in quickly staying that stipulated injunction, it was “an unusual way to use the federal courts.”  While the universities paint themselves as disinterested neutrals simply waiting for direction, the fact is that their sympathies lie with those advocating for racial preferences – no great surprise, since it was they who developed the diversity-as-compelling-state-interest argument and litigated it to conclusion in Gratz and Grutter.  It is also the very reason why the MCRI was adopted.

A decision by the Court affirming application of the Hunter/Seattle “political process” doctrine to the MCRI – Justice Kagan has recused herself – could have sweeping federalism implications.  In approving the “holistic” use of race in 2003, Grutter not only refused to enshrine it as constitutionally mandatory, but (in dicta) set a twenty-five-year clock running on its expiration.  Michigan voters, deciding not to wait that long, outlawed the practice immediately and unambiguously, by amending their Constitution via ballot initiative.  As the amicus brief my firm filed on behalf of four former attorneys of the Department of Justice Civil Rights Division argues, in doing so, citizens exercised one fundamental right – suffrage – in furtherance of another, equal protection.  If the Court declares that they did so actually in violation of equal protection, citizens in every state could be deprived of the ability to go to the polls and amend their constitution so as to oversee their statewide institutions of higher education as they see fit.  To affect the termination of race-conscious policies envisioned by Grutter, a state’s citizenry will have to navigate a bureaucratic gauntlet that frequently sympathizes with, and in many cases has been captured by, the same entrenched interest groups seeking to protect such policies “by any means necessary.”  As with the promise “free beer tomorrow,” the demise of racial preferences expressly envisioned in Grutter will never arrive.

Such a ruling also would be an unprecedented extension of the “political process” doctrine to the highest levels of popular self-government.  While it is one thing to say that Akron voters offended equal protection by removing control over fair-housing ordinances from the City Council to the city electorate (Hunter), or that Washington state voters violated equal protection by adopting a state statute designed to remove control over school desegregation plans from a local school board (Seattle), it is quite another to say Michigan residents are barred from amending their state’s organic governing document by exercising one power conferred in that document (initiative) to further two others (equal protection, and popular control over universities).  As even the universities acknowledge, all authority over them under the Michigan Constitution ultimately resides with the people.

Proponents of extending the “political process” doctrine to the MCRI in essence are seeking to perpetuate racial preferences indefinitely, by forcing those who want colorblind university admissions to seek such change not by the most direct and effective method, constitutional amendment, but through a process designed to diffuse their voices to the point where they can be ignored.  It is an insistence on playing only with loaded dice.  Leaving aside the Machiavellian overtones of organizing government along lines guaranteed to hear and implement only one set of views, the implications for federalism and self-governance of an opinion striking down the MCRI would be significant.

Michael F. Smith is principal of The Smith Appellate Law Firm in Washington, D.C., and Ellicott City, Md. He drafted the Former Attorneys of the Department of Justice Civil Rights Division’s amicus brief in this case

[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: Michael Smith, Symposium: Schuette tests limits on public control of public-university admissions, SCOTUSblog (Sep. 10, 2013, 12:58 PM), http://www.scotusblog.com/2013/09/symposium-schuette-tests-limits-on-public-control-of-public-university-admissions/