by Billy Corriher
A recent decision from the Sixth Circuit provides a new chapter in the long legal battle over affirmative action at Michigan’s public universities.
Jennifer Gratz, the lead plaintiff in the Supreme Court’s 2003 case that threw out the University of Michigan’s affirmative action program, campaigned for a state constitutional amendment to prohibit affirmative action. “Proposal 2” passed with a wide majority, and it amended the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.”
The Sixth Circuit case, unlike Gratz v. Bollinger, 539 U.S. 244 (2003), was not a traditional Equal Protection challenge to an affirmative action program. Rather, Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich. was a challenge to Proposal 2 itself. A divided three-judge panel held the proposal unconstitutional under the Equal Protection Clause, explaining that the proposal altered the political process governing admissions standards in a manner that disadvantaged minorities.
Under the Michigan constitution, the state universities’ governing boards are elected, and once elected, they enjoy independence from the state legislature. The Sixth Circuit describes the boards as having “absolute authority” over their institutions.
Proposal 2, by removing the boards’ authority to include affirmative action programs within admission standards, reordered the state’s political process to the detriment of minority groups. Crucial to the Court’s decision is the finding of a “comparative structural burden.” The court points out that “[a]n interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race.” They can lobby the admissions committees, deans, or the governing boards. “[T]he only option that remains open for proponents of race-based admissions criteria,” however, is campaigning for another amendment to the Michigan Constitution, an “expensive, lengthy, and complex” process. Because the programs that are burdened by the change — affirmative action in admissions — benefit minority groups, the proposal denies those groups some ability to participate in the political process and offends the Equal Protection Clause.
The majority relied on two Supreme Court cases. Hunter v. Erickson, 393 U.S. 385 (1969), ruled unconstitutional an amendment to a city charter that required a city-wide referendum to pass any fair housing ordinance. Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), struck down a state law that prohibited racially integrative busing. Both cases involved laws that removed authority over certain race-based decisions from a local level — the city council and school board, respectively — and placed it at a more remote level: the citywide electorate and the state legislature.
Proposal 2 similarly removed authority over one decision, affirmative action, from the governing boards to the state constitutional amendment process. The finding of a “comparative structural burden” hinged on the political accountability of the governing boards. The court said citizens can lobby the boards to adopt admissions policies they prefer.
The majority and the dissent differ over whether those setting admissions criteria are really accountable to the public. Who actually sets the universities’ admissions standards? Though the Michigan constitution seems to clearly vest such authority in the governing boards, the dissent cites the testimony of several law school deans for the proposition that the boards “have fully delegated the responsibility for establishing admissions standards” to faculty admissions committees. One dean even warned that a board’s attempt to alter a committee’s admissions criteria “would precipitate a constitutional crisis.” The dissent notes that tenure insulates these faculty members from any political accountability. Given that the state constitution grants authority over admissions to the governing boards, the faculty members may be mistaken about the gravity of the crisis that would result from any attempt to override their decisions.
In addition to this disagreement, the majority and dissent argue over whether to draw a distinction between laws that burden minorities’ ability to stop discrimination and laws that burden their ability to obtain preferential treatment. The dissent relies on a Ninth Circuit decision that drew such a distinction.
Will the Supreme Court weigh in on this split among the circuit courts? In Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007), the Roberts Court seemed skeptical of any race-based distinction, even one that ostensibly benefits minority groups. Will the Roberts Court agree with the Ninth Circuit? If the Equal Protection clause only allows affirmative action programs in limited circumstances, can states pass laws that prohibit affirmative action, as long as the laws don’t affect minorities’ ability to address de jure discrimination?
If the Court stays true to Hunter and Seattle, it will be hard pressed to justify such a distinction. In Seattle, the school district did not implement busing under a court order to address past discrimination, but the removal of the district’s authority to implement a busing program still reordered the political process to the detriment of minorities. The Sixth Circuit suggests that the Ninth Circuit conflates the political process doctrine with traditional Equal Protection analysis.
Proposal 2 and similar measures erect obstacles for proponents of programs that benefit minorities, obstacles that do not exist for supporters of other programs. These obstacles offend Equal Protection — regardless of whether the proponents seek to end discrimination or give minorities a leg-up. States cannot require supporters of affirmative action or busing to jump through hoops that supporters of other policies do not face. The Equal Protection Clause protects racial minorities, gay and lesbian citizens, and other politically insular groups from laws that target them for differential treatment. Political majorities cannot use the law to make it harder for racial minorities to pass laws that benefit them.