BY DANIELLE COUPET — In true legal fashion, let’s start with a hypothetical. Suppose we have two applicants to the University of Michigan: Tom and Tyra. Tom is a premiere football quarterback, whose father also just so happened to play football at the University of Michigan. Tyra is an African-American woman, hoping to be the first college graduate in her family.
If Tom would like to have his outstanding athletic ability, or his father’s alumni status considered in his application there are a few routes that he could employ. Tom could 1) petition the leadership of the University; 2) lobby the admissions committee; 3) try and influence the University’s Board of Governors; or 4) try and amend Michigan’s constitution. If Tyra would like her race to be considered in her application, after Proposal 2, the only option for Tyra is to amend the Michigan constitution.
Proposal 2 is Michigan’s constitutional amendment to “prohibit all sex and race-based preferences in public education, public employment and public contracting”—passed on Michigan’s November 2006 ballot with support from 58% of the Michigan voters. Clearly, many in Michigan believe the 48-year-old “patch” of affirmative action has served its purpose on the 400-year-old history and practice of racial inequality.
In Coalition to Defend Affirmative Action v. Regents of University of Michigan, the Sixth Circuit responded to these mobilized efforts, challenging the 2006 ballot initiative to ban affirmative action programs. The case questioned whether Proposal 2 violated the Equal Protection Clause by restructuring the political process along racial lines. The political-process argument of Proposal 2 advocates hinges on a Fourteenth Amendment standard that minority groups not only receive fair and equal treatment under existing laws, but that they also have meaningful participation in the process of creating those laws. Simply stated, the political-process doctrine is comparable to the idea that when two runners are in a race, “one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.”
The Sixth Circuit Court of Appeals applied the Hunter/Seattle test, and struck down Proposal 2 as unconstitutional. The Hunter/Seattle test emanated from two earlier Equal Protection cases dealing with the political process—Hunter v. Erickson and Washington v. Seattle School District No. 1. The Hunter/Seattle test requires courts to “examine an enactment that changes the governmental decision-making process for legislation with a racial focus to determine if it improperly manipulates the channels for change.” The Sixth Circuit structured its examination by determining whether the law 1) has a racial focus, targeting a policy or program that inures primarily to the benefit of the minority, and 2) reallocates political power or reorders the decision-making process in a way that places special burdens on a minority group’s ability to achieve its goals through that process. If the law satisfies both prongs, then the enactment deprives minority groups of equal protection. As noted earlier, the court found that Proposal 2 was unconstitutional under this standard.
Coalition to Defend Affirmative Action’s journey is not yet complete, however. The Supreme Court granted certiorari under the name Schuette v. Coalition for Affirmative Action. On Tuesday, October 15, 2013, the Supreme Court heard oral arguments on the matter, and the decision is expected by June 2014. What does this author think the Supreme Court will do? It seems as though the Court will reverse the Sixth Circuit and uphold the constitutionality of Proposal 2. With Justice Kagan’s recusal, and the conservative bench’s growing aversion to affirmative action, five conservative justices holding that Proposal 2 is unconstitutional appears far-fetched.
The problem is that everyone wants to avoid talking about race. The word “race” has become taboo. During oral arguments, Chief Justice Roberts even expressed that the point of the Equal Protection Clause was to “take race off the table.” He asked ACLU attorney Mark Rosenbaum whether “it was unreasonable for the state to try to achieve diversity without racial preferences.” Maybe in some Harrison Bergeron reality, we would be able to achieve diversity without speaking about race. But the reality is that we are not equal. The history of this country has facilitated the oppression of certain minority groups and has caused minorities to face certain disadvantages, especially in the context of education. Race, like gender, sexual orientation, socioeconomic status, etc., is one factor that contributes to an individual’s identity and experience, which in turn facilitates a more enriched learning environment that results from having individuals of different races in the educational setting. If the Supreme Court upholds the constitutionality of Proposal 2, Michigan will continue to be one of eight states to ban affirmative action—the others are Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.
Back to our hypo. Armed with the above information, what challenges would arise should Proposal 2 be ultimately upheld?
If Proposal 2 is upheld, Tom’s avenues for consideration would be unaffected, whereas Tyra would have to amend the Michigan Constitution to allow consideration of her race in applications. By definition, minorities are already at an electoral disadvantage in their attempts to traverse the democratic process, and for those who are a little fuzzy on the constitutional amendment process, let’s just say that Bill Clinton had an easier time convincing the world that he “did not have sexual relations with that woman.”
Ok, maybe no one believed that. But amending a state’s constitution is an expensive, time-consuming, and arduous task. Tyra would have to lobby and gain enough support to have the proposal even be considered for entry on the next ballot. If the proposal was successful and was included on the ballot, Tyra would then have to gain enough supporters to vote for and pass the proposal. After a lengthy and grueling political campaign, Tyra would still be responsible for petitioning to the admissions committee or the University’s board to consider her race in her application, because after Grutter v. Bollinger, race-conscious admissions programs are permissible but not “constitutionally required.”
Maybe a ban on affirmative action will encourage states to finally resolve the fundamental issues—de facto segregation in schools, lack of funding and resources at predominately Black or Hispanic schools, standardized tests inherently biased towards certain cultures, etc.—that cause the lack of competition from minority applicants at the collegiate level. Or maybe a ban on affirmative action will perpetuate racial inequalities at the collegiate and graduate levels. The answers to the questions posed here will reveal themselves in time. For now, the discrepancies between the processes already available to minority and majority groups to ensure relevant factors are considered in their applications make it more sensible to follow the Sixth Circuit’s application of the Hunter/Seattle two-pronged test and to strike down Michigan’s Proposal 2.