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BACKGROUNDIn 2003, the Supreme Court in Grutter v. Bollinger (2003) allowed universities, specifically the University of Michigan Law School, to consider race or ethnicity as a "plus factor" in the individualized consideration of students. Higher education institutions were allowed to narrowly consider race to achieve a diverse student body. The Supreme Court in Fisher v. University of Texas (2013) allowed higher education institutions to continue the practice, even though their holding narrowed the the application of this practice.
Yet, in 2006, the Michigan voters passed Proposal 06-2 (Proposal 2), which amended the Michigan Constitution to ban public institutions (including Michigan universities and colleges) use of race and sex-conscious affirmative action policies. [Note: Michigan is not the only state to pass such a sweeping prohibition on affirmative action]. In 1996, California voters approved a state constitutional amendment—Proposition 209—banning state agencies, such as public universities to consider sex, race, or ethnic background in decisions regarding education, jobs, or contracts. Fast forward seventeen years, the Court will determine whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions criteria. Therefore, resolving the dispute once and for all (well not really, the law never solves anything conclusively, but I digress).
The Political Process Doctrine:Even though the debate over affirmative action is the superstar issue in this case, the Court took this case to clarify the Political Process Doctrine articulated in earlier precedents, Hunter v. Erickson (1969) and Washington v. Seattle School District No. 1 (1982).
The Political Process Doctrine, as described in Hunter, holds that state action cannot enact legislation that makes it difficult for any particular group to enact legislation. In Hunter, the citizens of Akron amended the city charter through a referendum that made it arduous for the city council to propose fair housing ordinances on the basis of race, color, religion, ancestry, and national origin. The Court found that the amendment placed a “special” burden on minorities and made it more difficult for minorities to enact beneficial legislation. In Seattle, the Court struck down an initiative (referendum) that inadvertently banned racially integrative busing using the same reasoning in Hunter.
Sixth Circuit:In a 7 to 5 en banc decision, the Sixth Circuit struck down Proposal 2 as unconstitutional. The majority held that Proposal 2 served as an impediment for minorities to utilize the political process to consider using race-conscious initiatives; therefore placing an unequal burden on minorities. The majority argued that a student seeking a legacy conscious admission policy could lobby admissions committees, petition university
leadership, influence university boards, or even initiate a statewide campaign to alter the state constitution, but for minority students seeking the adoption of an acceptable race-conscious admissions policy, they would have to amend the Michigan Constitution, due to the enactment of Proposal 2. The Court found that such a stark difference in political power violated the Equal Protection Clause.
Additionally, the majority opined a political process doctrine rule, signifying that a state enactment denies minority groups equal protection of the law when it: i) has a racial focus, and prevents minorities from benefiting under a targeted policy; and ii) reallocates political power that places a “special burden” on minorities to enact favorable legislation to their benefit.
The dissenting opinions argued that the use of race conscious policies are not constitutionally required and are automatically limited in time and scope. Additionally, the dissent argued that Proposal 2 did not burden race, like the initiatives in Hunter and Seattle. Proposal 2 addresses race, sex, color, and national origin, and impacts not just university admissions but to public employment and contracting.
- Proposal 2 is not an impediment to equal treatment but an impediment to the pursuit of policies that grants special treatment to certain groups.
- Proposal 2 does not reallocate the political structure in the state of Michigan, because higher education admission processes are not equivalent to political processes, therefore not protected under the doctrine.
- A reallocation of political decisions only violates the political process doctrine under the equal protection clause if there is evidence of purposeful racial discrimination. In fact, the petitioners argue that Proposal 2 promotes non-discrimination since it requires a color-blind decision-making process.
- Proposal 2 violates the Equal Protection Clause by making it difficult for minority groups to petition public universities to use race as an admission factor. The Coalition makes the argument, that through embedded national practices of racism and segregation, affirmative action policies—such as race-based admission policies—are necessary to afford minority students the opportunity to attend college.
- Petitioning elected officials, such as the Regents and Trustees of the various Michigan public universities, is a political process.
- Prohibiting universities from utilizing permissible race-conscious admission policies harms the ability of universities to achieve the benefits of a diverse student body.
MY TWO CENTS (which is worth my law school tuition)
I do not believe the Supreme Court is going to continue to bite off chunks of the affirmative action question. Fisher, for now has reaffirmed, yet confused the use of affirmative action policies in higher admission processes. Proposal 2, in its color-blind rhetoric absolutely took away the right of public universities and colleges to use race-conscious policies to achieve its goal of a diverse student body. Even though the policy included other immutable traits, such as sex and national origin, and prohibited the use of race in the role of government jobs and contracts, its broad nature conclusively burdens minorities on all fronts, not just academically. Also, its ridiculous to argue that elected University Trustees or Regents are not political actors and its admissions processes are not political processes.
Arguments that race was not the underlying factor for the enactment of Proposal 2 fails to consider that propositions for Proposal 2 immediately followed the Grutter decision, which allowed the University of Michigan to use race as a factor in its admissions criteria. Additionally, the fact that a majority population enacted Proposal 2, burdens the ability for minorities to repeal through similar actions. Fair Housing initiatives, integrative busing, and affirmative action policies inadvertently impacts minorities. The dissent’s argument that race-conscious admission policies are not constitutionally required forgets that fair housing, racially integrative busing, and affirmative action policies were used as tools to help promote equality. This case mirrors the Hunter and Seattle decisions under the Political Process Doctrine, and I am really curious to see how the Court will construe the case.
I hope this synopsis helps readers to understand the issues outlined in the Schuette case.