Supreme Court Update: Schuette v. Coalition to Defend Affirmative Action (12-682)

April 24, 2014 Supreme Court Update

Greetings, Court fans!

The Court delivered another April blockbuster this week, Schuette v. Coalition to Defend Affirmative Action (12-682), concluding 6-2 (with Justice Kagan recused) that a Michigan ballot initiative prohibiting the state from granting preferential treatment on the basis of race in college admissions and other state decisions does not violate the Fourteenth Amendment. At a hefty 108 pages, Schuette is all we'll cover in this Update; we'll be back later with summaries of the other three cases decided this week, Paroline v. United Sates (12-8561), White v. Woodall (12-794), and Prado Navarette v. California (12-9490).

Following the Supreme Court's 2003 Grutter v. Bollinger decision, in which it held that a public university may consider race as one of many factors for the purpose of cultivating a diverse student body, Michigan voters adopted an amendment to the State's constitution that prohibited any consideration of race in college admissions decisions (as well as other state actions). Given that racial preferences in public university admissions policies have often been challenged in recent years for themselves violating the Equal Protection Clause, it may seem like a no-brainer that a state may ban them without thereby violating the Clause. That's how Justices Scalia and Thomas saw it, framing the question presented this way: "Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?"

But, as Justice Kennedy emphasized in his plurality opinion (with the Chief and Justice Alito) announcing the Court's decision, "this case is not about . . . the constitutionality, or the merits, of race-conscious admissions policies in higher education." Rather, the case turned on "whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions." That question turns out to be a bit more complicated, in light of a line of Warren and Burger Court cases (primarily Hunter v. Erickson (1969), and Washington v. Seattle School Dist. No. 1 (1982)), which advanced an equal-protection theory known as the "political process doctrine." As the Court stated in Seattle, the political-process doctrine prohibits a state from "remov[ing] the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests."

The Sixth Circuit in this case applied the political-process doctrine to strike down the Michigan constitutional amendment banning race-conscious admissions policies because it removed the decision whether to include a racial preference in admissions from the elected eight-member governing board of each state university and "lodged it in the most remote level of Michigan's government," the state constitution. This "restructuring," according to the Court of Appeals, burdened minority interests because racial minorities can now only get preferential treatment in admissions by amending the state constitution, whereas other groups, like athletes or legacy applicants, can still simply lobby the governing boards.

The Supreme Court disagreed. Four justices (the plurality plus Breyer, who wrote separately) believed that the political-process doctrine did not extend to the Michigan constitutional amendment. Two more (Scalia and Thomas) would have done away with the doctrine altogether. Only two (Sotomayor and Ginsburg) believed that the political-process doctrine both remains relevant and bars the Michigan constitutional amendment.

The plurality concluded that the political-process doctrine only applies where "the state action in question . . . ha[s] the serious risk, if not the purpose, of causing specific injuries on account of race." That was true in Seattle and Hunter, but not in Michigan when voters amended the constitution to ban racial preferences. The Sixth Circuit extended the doctrine far beyond its reach to effectively prohibit any racially focused state action that makes it more difficult for racial minorities than for other groups to achieve policies in their interest. The plurality rejected this notion as being without principled limitation and incompatible with the Court's equal-protection jurisprudence, which forbids "impermissible racial stereotypes," like the notion (implicitly endorsed by the Sixth Circuit) that all racial minorities would support the same policies generally, and racial preference in college admissions, in particular. Moreover, the doctrine as applied by the Sixth Circuit (and the dissent), ran headlong into fundamental First Amendment principles, namely the right of the electorate to debate and decide issues of importance, even if they are sensitive. As the plurality put it, in trademark Kennedese, "Our constitutional system embraces . . . the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure." To hold, as the Sixth Circuit effectively had, that the state's voters could not have this debate, would be an affront to the First Amendment and would be "inconsistent with the underlying premises of a responsible, functioning democracy."

Justice Breyer penned a separate opinion concurring in the judgment. He agreed with the plurality that Seattle and its antecedents should not be overturned, but he felt that the political-process doctrine was not implicated in this case because the Michigan constitutional amendment did not actually result in a "reordering of the political process." Prior to the Michigan amendment, the elected governing boards delegated the power to set university admissions policies to unelected faculty members, so minorities and other students had no true ability to lobby for their interests to begin with. Thus, the case was not like Seattle and Hunter, where minorities had participated in the local political process and won, only to have a subsequent reordering of the political process repeal their success and make it more difficult for them to succeed in the future. In this case, because there was "no prior electoral process in which the minority participated," the minority did not really lose anything as a result of the amendment.

Justice Scalia, joined by Justice Thomas, also concurred in the judgment only, but criticized the plurality for "reinterpreting [Seattle and Hunter] beyond recognition" instead of reversing these decisions and repudiating the political-process doctrine entirely. In fact, like the dissenters, Scalia concluded that the "relentless logic of Hunter and Seattle" supported the Sixth Circuit's decision in this case: "In those cases, one level of government exercised borrowed authority over an apparently ‘racial issue,' until a higher level of government called the loan. So too here." But because he found Hunter and Seattle to be "[p]atently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence," he would simply reverse those decisions and hold that the Michigan amendment, being a facially neutral enactment directing state actors to provide equal protection, did not violate the Equal Protection Clause.

Justice Sotomayor, joined by Justice Ginsburg, penned an impassioned, 58-page dissent, longer than all the other opinions combined. To Sotomayor, the Michigan amendment was just a page in the latest chapter of our nation's "long and lamentable record of stymieing the right of racial minorities to participate in the political process." In the early days, "the majority acted with an open, invidious purpose," prohibiting racial minorities from voting altogether. After the Supreme Court put a stop to that, "the majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering." But the Court again intervened to protect the minority's right to participate in the political process. In the latest chapter, the majority has suppressed minority rights by "chang[ing] the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration." That's what happened here, in Sotomayor's view, where a majority of the Michigan electorate "changed the basic rules of the political process of the State in a manner that uniquely disadvantaged racial minorities." Whereas prior to the amendment, racial minorities had succeeded in persuading university governing boards to adopt race-sensitive admissions policies, the majority had removed that decision from the governing boards entirely, requiring racial minorities to secure a constitutional amendment to bring about favorable admissions policies, while other groups could continue lobbying the governing boards. This amounted to a quintessential violation of the political-process doctrine, which Sotomayor and Ginsburg believed was still very much controlling thirty-two years after Seattle was decided.

In sum, there was a clear 6-2 majority for affirming the Michigan amendment (though Justice Breyer may not have agreed had the admissions process previously been truly in the hands of a politically responsive body), but the Court was split down the middle (the plurality and Breyer on one side, the dissent and Scalia and Thomas on the other) on whether this result is consistent with the political-process doctrine. Though only two justices would scrap the doctrine entirely, only two would continue to apply it as robustly as the Warren and Burger Courts did. The views of the remaining four (to say nothing of Kagan) are muddled, to say the least, so the future viability of this doctrine remains to be seen.

That should be enough to think about while we catch up on the other action at One First Street this week. Stay tuned.

Kim, Jenny & Tadhg

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400