Monday, November 18, 2013

How Diversity Stole the Show at Oral Argument in Schuette v. Coalition to Defend Affirmative Action, by Scott Greytak

I was still in the early stages of using my neighbor – an apathetic marble pillar – as an armrest when Schuette’s oral argument turned into a debate over diversity in higher education. This was mostly a surprise, considering how the appeal before the Court concerned Proposal 2, a 2006 Michigan ballot-initiative-turned-constitutional-amendment that hinged on the applicability of something called the “political restructuring doctrine.”

A little background: After the U.S. Supreme Court affirmed the constitutionality of race-conscious admissions some ten years ago in the now-famous case Grutter v. Bollinger, Jennifer Gratz, the plaintiff from its companion case, started rolling the snowball for what would become Michigan’s Prop 2. The referendum, which banned racial preferences in higher education, public employment, and government contracting, was approved by Michiganders 58%-42% in 2006, only to be struck down six years later at the Sixth Circuit Court of Appeals by an 8-7 vote. The Sixth Circuit, applying the political restructuring doctrine, determined that the amendment made it unacceptably difficult for minorities to access and influence Michigan’s political process. Jennifer Gratz & Co. appealed the decision, and the final review of Schuette (pronounced “Shoe-tee”) went into motion.

Because an aggressive Schuette Court ultimately could, some argue, choose to outlaw affirmative action across the board, conversations on diversity at oral arguments were certainly possible, but were far from necessary. Nothing about Schuette speaks directly to the Supreme Court’s diversity-in-higher-education jurisprudence. A conversation about the political restructuring doctrine – interrupted every now and then by an heroic tumbleweed or two – seemed written in the stars.

Forget that plan. Though the intricacies of the doctrine would receive plenty of airtime later, the eight justices (Justice Elena Kagan was absent due to her former involvement while U.S.  Solicitor General) wanted to talk diversity first. And not two minutes would go by between Chief Justice Roberts announcing Schuette and the unearthing of freshly-buried ideological hatchets. Even though, according to the first oralist – Michigan Solicitor General John Bursch – the “point [of Schuette] isn’t to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about,” right from the jump, Bursch and Justice Sonia Sotomayor picked up where the Court had left off in last term’s Fisher v. University of Texas at Austin, arguing diversity and – most attention-grabbing – the viability of race-neutral alternatives to traditional, “check the box” affirmative action policies in higher education. Suddenly the courtroom was alive with old, familiarly controversial spirits that roamed the courtroom in search of warm-bodied jurists.

Fisher, which I consider the Court’s most misunderstood decision of its 2012-2013 term, dealt directly with the novel legal conundrum of race-neutral admissions plans, namely Texas’s Top Ten Percent Plan. The decision, released this past June, has since rekindled – in that slow-burning, “Purple Rain”-type of way- the smoldering controversy of affirmative action in colleges and universities.

Because Schuette offers the conservative bloc of the Court another swing at the use of race in admissions – albeit with a much smaller strike zone than in Fisher – all three oralists managed to inconvenience their primary points of law in order to speak to the larger ideological picture: “[T]here are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways,” Bursch – the eager beaver of the three oralists – offered after only slight provocation.

“I thought that in Grutter,” Justice Sotomayor shot back, “all of the social scientists had pointed out [that] all of those efforts had failed.” In response, Bursch highlighted how the University of Michigan could in fact increase its diversity levels if it eliminated its preferences for the children of alumni, and if it attached greater value to applicants’ socioeconomic statuses. (The latter idea has caught fire recently because of its near-airtight legality – it does not explicitly consider race, making it impervious to 14th Amendment-based challenges – its political digestibility, and, perhaps, its capacity to produce more diversity than traditional affirmative action.)

And so the gusto over diversity, Grutter, and Fisher rowed on for a bit, eventually beat back by the jurisprudential boundaries of Schuette and the political restructuring doctrine. Just a skirmish, it turns out. But one that reminded us all of the deeper issues yet to be resolved.

--Scott Greytak

Scott Greytak is an associate at Campinha Bacote LLC in Washington, D.C., where he provides legal analysis, policy recommendations, and commentary on the intersection of civil rights and education policy.

Higher education, Racial Integration and Diversity | Permalink


Great analysis. Just want to go on record here with my surprise that "institutional academic freedom" has not played a more central role here. If there were ever a test case for an institutional "right" to academic freedom, this is it. The university, in its professional academic discretion, seeks to do something that it thinks is in the best academic interest of the entire institution, while state law says that it cannot do that thing. If the First Amendment provides universities with institutional First Amendment rights, then these rights trump even state constitutiional law. Did the institutional conception of academic freedom make more than a passing appearance in the oral argument?

Posted by: Scott Bauries | Nov 18, 2013 5:49:03 AM

Hi Scott –

This has been a common point of concern ever since the Sixth Circuit – somewhat surprisingly – threw its weight behind the political restructuring doctrine, as opposed to the First Amendment arguments Justice O’Connor laid out in Grutter. As you know, O’Connor’s third justification for the deference granted in Grutter was the Court’s “tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.” You make an excellent observation that the institutional conception of academic freedom/the First Amendment would override any attempts from the state to legislate in this space, but unfortunately the issue was never pursued – not even in passing – at oral argument.

For more in-depth coverage of the potential arguments, though, I’d take a look at two amicus briefs from Fisher: AAUP’s brief to the 5th Circuit (, and ACE’s brief to the Supreme Court (which AAUP joined) ( While another blog ( raised the issue last month, I’m yet to hear much discussion on the issue, perhaps due to the jurisprudential guardrails placed on the Court by the political restructuring doctrine. However, if you do happen to come across any good coverage, could you send it my way? I’m at Thanks.

Posted by: Scott Greytak | Nov 24, 2013 6:09:30 PM

Thanks very much, Scott. I was thinking about writing something short on the issue, and I was vexed not to see anything at all out there even noting the lack of academic freedom talk in the case. I thought I was missing something, but I guess you're right--just the guardrails (great term, by the way) that the 6th Circuit placed on the case.

Posted by: Scott Bauries | Nov 26, 2013 1:59:43 PM

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