Schuette v. Coalition to Defend Affirmative Action (BAMN)

Brief Fact Summary.

Coalition to Defend Affirmative Action (BAMN) (Plaintiff) challenged an amendment to the Michigan state constitution prohibiting the use of race-based preferences in the admissions process for state universities.

Synopsis of Rule of Law.

An amendment to a state constitution that prohibits the consideration of race in the admissions process for state universities is not a violation of the Equal Protection Clause.

Facts.

Michigan residents voted in favor of an amendment to the state constitution prohibiting the use of race-based preferences in the admissions process for state universities. Plaintiff, an affirmative action coalition, challenged the amendment, now § 26 of the state constitution, as an unconstitutional violation of the Equal Protection Clause. The U.S. Supreme Court granted certiorari. [The remainder of the procedural posture is not included in the casebook excerpt.]

Issue.

Is an amendment to a state constitution that prohibits the consideration of race in the admissions process for state universities a violation of the Equal Protection Clause?

Held.

(Kennedy, J.) No. An amendment to a state constitution that prohibits the consideration of race in the admissions process for state universities is not a violation of the Equal Protection Clause. This case is not about the constitutionality of race-based admissions policies, but rather it is about whether voters in a state may choose to prohibit such considerations. Previous cases have dealt with laws designed to harm racial minorities. See Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969). Prior to either of these cases, the Court decided Reitman v. Mulkey, 387 U.S. 369 (1967), and held that a voter-enacted amendment of the California Constitution prohibiting the state legislature from enacting laws that interfered with a landowner’s decision to refuse to sell or rent residential properties on any basis, including race, was an unconstitutional involvement of the state in private racial discrimination. In Hunter, an ordinance had been enacted to address the widespread racial discrimination in housing that forced many minorities to live in unsafe and unsanitary segregated housing. The voters overturned the ordinance and the Court found that this action by the voters placed a burden on minorities within the governmental process and was just as impermissible as any other government action taken with the intent of harming a racial minority. In both Mulkey and Hunter, state encouragement or participation made an existing injury on the basis of race more aggravated. In Seattle, the state action itself had the risk, if not intent, of causing injuries based on race. Seattle is a case where neither the state nor the federal government challenged the good intentions behind race-conscious student assignments as a way of achieving integration, even without a finding of de jure segregation. The Seattle opinion went beyond the analysis required to resolve that case and created a new rationale, holding that where a government policy inures primarily to the benefit of the minority and minorities consider the policy to be in their best interest, any state action that puts the decisionmaking authority for that policy in a different level of government is subject to strict scrutiny. We reject that reading of Seattle and to the extent that Seattle is read to require the Court to decide which governmental policies are in the best interests of a racial class, that rationale was unnecessary to decide the issue in Seattle, is not supported by precedent, and raises equal protection concerns. This rationale would require an assumption on the part of a court that all members of a certain racial group think alike as to such policies. It would also require classifications by race without legal standard, leading to classes defined based on demeaning stereotypes and questionable constitutionality. This rationale would then require a court to determine which policies each class had an interest in, again without legal standards. The result of these machinations would be the validation of racial division, not its discouragement. In this case, there is no infliction of a specific harm as was found in Hunter and Mulkey and so there is no precedent for extending those holding to prevent Michigan voters from determining that race-based admissions preferences should be ended. The issue here, as opposed to in the earlier cases, is not a state action to address or prevent racial injury, but whether voters can decide whether a policy promoting race-based preferences should be continued. The Constitution embraces the rights of people to act through a lawful electoral process. It is demeaning to the electoral process to presume that voters are not capable of deciding this issue on decent and rational grounds. Judgment for defendants. [The remainder of the disposition is not included in the casebook excerpt.]

Dissent.

(Sotomayor, J.) The plurality ignores this country’s history of restricting the right of racial minorities to participate in the political process. The amendment here is now a part of that history. The voters changed the basic rules of the political process in the state in a way that disadvantaged racial minorities. As the state’s universities started to use affirmative action to undo the effects of racial discrimination, the voters eliminated the policy in a way that reconfigured the existing political process in Michigan in a way that burdened racial minorities. Race-neutral admissions policies have been shown to be insufficient to achieve racial diversity. Under the political-process doctrine of Hunter and Seattle, when the majority reconfigures the political process in a way that burdens only a racial minority, the action bears strict judicial scrutiny. The amendment here has a racial focus and race-based admissions preferences clearly inure primarily to the benefit of racial minorities. Contrary to Justice Scalia’s assertion, the racial-focus prong does not require that the policy benefit only a minority group, but must benefit primarily a racial minority. Race-based admissions preferences both enhance educational benefits through diversity, a compelling state interest, and benefit a racial minority. These results are not mutually exclusive. The policies that have now been eliminated had previously survived strict scrutiny and were, therefore, the least restrictive ways to achieve the state’s compelling interest in diversity. Prior to this amendment, all admissions decisions were delegated to each university’s eight-member governing board, which were part of the political process. Now the boards have power over all admissions decisions except race-based admissions policies. To change these race-based policies, citizens must now pass a new amendment to the state constitution, an onerous task. Hunter and Seattle stand for the proposition that the majority may not restrict the minority’s right to participate on equal terms in the political process. An application of this proposition here would lead to a finding for the plaintiffs. The plurality instead reads those cases to invalidate government actions because they reflected a discriminatory purpose. The plurality has rewritten those precedents beyond recognition. Justice Breyer assumes that the governing boards delegated admissions policy decisions to unelected university faculty members and administrators, but it is clear that the elected governing boards had the authority to eliminate or adopt race-based admissions preferences prior to the constitutional amendment at issue here. It is also clear that this amendment removed that power from the boards and placed it at a higher level of the political process in Michigan. Therefore, this case is just like Hunter and Seattle in that respect. The political-process doctrine resovles this case as a matter of stare decisis, but also as a matter of first principles, since the doctrine reflects the principle that the minority has the right to participate in the process on the same terms as the majority. There are three features to the right to political participation—every eligible citizen has the right to vote, the majority cannot restrict the minority’s ability to exercise the right to vote, and a majority may not reconfigure the existing political process in a way that creates a two-tiered system. A two-tiered system subjects laws created to protect or benefit a discrete or insular minority group to a more difficult political process than other laws. If this feature of the right to political participation is not protected, the minority can participate, but the majority can change the rules to make sure the minority always loses. That is what happened here. Additionally, contrary to what Justice Scalia and the plurality assert, the first prong of the political-process doctrine does have a clear legal standard—does the public policy at issue inure primarily to the benefit of the minority and was it designed for that purpose? Judges are able to make factual inquiries and determine whether that standard has been met. In this case, the amendment has a racial focus, and the plurality’s reasoning that upholding the political-process doctrine would divide the country along racial lines, ignores reality and history. The plurality perpetuates racial inequality by ignoring it.

Concurrence.

(Scalia, J.) Seattle, Hunter, and the entire political-process doctrine should be overturned. They are atextual, unadministrable, and run counter to the Court’s equal protection precedent. The issue here, as in every case where a neutral state action is said to deny equal protection on the basis of race, is whether the challenged action has a racially discriminatory intent. It does not. The political-process doctrine requires a court to determine whether a law that transfers policymaking authority concerns a racial issue and then whether adopting one position is intended to benefit, and would benefit, the minority. This approach requires judges to divide the population into racial classes and promotes racial stereotyping. This approach also misreads the Equal Protection Clause to protect certain groups instead of seeing equal protection as an individual right. The Fourteenth Amendment was intended to eliminate, not validate, racial classifications. The dissent claims that legislation motivated by bias against discrete and insular minorities requires heightened scrutiny, but does not demonstrate that this legislation was motivated by bias or why certain racial minorities would be considered an “insular” group as a result of prejudice. The dissent also does not explain why a group’s “discreteness” or “insularity” would be a political weakness instead of a strength. The Hunter-Seattle rationale nearly eclipses the rule of structural state sovereignty. Under this approach, affirmative-action safe havens would be created whenever subordinate officials in public universities traditionally have held decsionmaking authority over the admissions process but have not used that authority to prohibit race-conscious admissions preferences. A subordinate’s discretion over a matter would end up serving as a kind of reverse preemption, permitting local government to permanently preempt the state from addressing a matter of importance to the state. Hunter and Seattle also endorse the view that a facially neutral law may still violate equal protection rights if it results in a disparate racial impact. That theory has been rejected by a line of cases holding that only state action motivated by discriminatory intent violates the Equal Protection Clause. A law that neither says nor implies that people are to be treated differently on the basis of race is not a racial classification. The plaintiffs cannot prove that the amendment was motivated by a racially discriminatory purpose because a law that expressly requires state actors to treat everyone equally cannot deny any person equal protection of the laws.

(Breyer, J.) First, this case only reaches the portion of the amendment that forbids race-conscious admissions preferences that are designed to create a diverse student body. Second, the Constitution permits, but does not require, the use of such preferences. The Constitution sees the electoral process, and not the courts, as the normal means for resolving debates about such programs. Third, Hunter and Seattle, which stand for the proposition that an individual’s ability to participate meaningfully in the political process should not be restricted because of his race, do not apply in this case. Those cases were about the restructuring of political processes that changed the political level at which policies were enacted. This case involves an amendment that took decisionmaking authority away from unelected university officials and administrators and gave it to the voters. Extending the rationale in Hunter and Seattle to cases where decsionmaking authority was taken from an administrative body and transferred to a political one would create difficulties for judges who would have to determine when such a change places a burden on a racial minority. The people, and their elected officials, have the right to adopt race-based policies for reasons of inclusion and the right to vote not to do so.

Discussion.

There was no majority opinion in this case, reflecting the division among the Court about its proper role in the enforcement of the Equal Protection Clause. However, what is clear is that post-Schuette the political-process doctrine, although not explicitly overturned, is effectively dead.