Court Upholds Michigan Ban on Consideration of Race in Admissions

Yesterday, the Court held in Schuette v. Coalition to Defend Affirmative Action that the Michigan referendum, which amended the state constitution to prohibit the consideration of race in admissions following Grutter v. Bollinger, was constitutional.  The plaintiffs had alleged that the Michigan amendment violated equal protection under the Court's political process theory, most recently articulated in Washington v. Seattle Schools, 458 U.S. 457 (1982).  In Washington, the state had banned integrative busing (except that required by court order), which invalidated the Seattle School District's voluntary desegregation plan.  

The plaintiffs in Schuette argued that the Michigan amendment put minorities and minority interests at a distinct disadvantage in securing favorable laws, just as the state had in Washington. An alum of the University of Michigan could, for instance, petition for favorable admissions policies and considerations for children of alums without needing to resort to a consitutional amendment, but after Michigan's referendum, those advocating for racial diversity considerations would be precluded from securing favorable legislation or policies without first passing a constitutional amendment.  This, they say, violates equal protection in the political process.

The Court rejected their claim by a vote of 6-2 (Kagan recused herself), but there was no majority opinion agreeing on the rationale.  Three justices (led by Kennedy) distinguished the Washington line of cases as being about states changing the political process in such a way that made it more difficult to remedy discrimination and/disadvantage.  In other words, those three justices read the political process theory to preclude states from locking in a political process that made it more difficult to remedy discrimination.  They reasoned that Shuette did not involve limits on remedying discrimination, but limits on using racial preferences.  The latter is distinct and, thus, the political process theory does not apply to Michigan's actions here.

In a separate opinion, Justice Scalia, joined by Thomas, reasoned that the political process theory would apply here and that the facts of Schuette are not distinct.  He, however, argued that the political process theory was itself a flawed doctrine and should be overturned.  The proper standard would be the intentional discrimination standard, which the plaintiffs could not meet here.

Justice Breyer, writing alone, reasoned that this case did not involve a change in the political process, but simply a constitutional amendment, which was permissible.  The U.S. Constitution permits race conscious admissions, but does not require them.  Thus, voters are free to reject them.

Justice Ginsberg and Sotomayor argued that the Washington line of cases applied and this amendment violates that precedent, per the plaintiffs' rationale discussed above.

In most respects, the case does not change much (at least not yet).  It did not change the holding in Grutter.  The issue of whether diversity is a compelling interest was simply not before it, which the Court emphasized.  The only issue before it was that of altering the political process by which a state or locality makes decisions about race.  In other words, at what level of government should issues of integration, diversity, busing, and discrimination be made and when can those decision-making rules be changed so as to make certain racially progressive policies more difficult.  Cases premised on this precise contextual question have only come before the Court a few times in the past and do not involve a rich doctrinal development.  So while the Court did appear to limit that doctrine, it was never a widely used doctrine.

The case does sanction anti-affirmative action legislation, but the fervor for that legislation was greatest following Grutter, not now.  There is nothing in Schuette to incite or upset anti-affirmative action advocates.  With that said, I will leave further discussion to others who have spent more time thinking seriously about this case.  A few have already contacted me and I hope to have their thoughts soon.