{"id":914,"date":"2011-07-18T08:26:04","date_gmt":"2011-07-18T12:26:04","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=914"},"modified":"2015-10-02T15:28:48","modified_gmt":"2015-10-02T15:28:48","slug":"the-never-ending-battle-over-affirmative-action-at-the-university-of-michigan","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/07\/18\/the-never-ending-battle-over-affirmative-action-at-the-university-of-michigan\/","title":{"rendered":"The Never-Ending Battle Over Affirmative Action at the University of Michigan"},"content":{"rendered":"

Billy Corriher<\/em><\/p>\n

A recent decision from the Sixth Circuit provides a new chapter\u00a0in the long legal battle over affirmative action at Michigan\u2019s public universities.<\/p>\n

Jennifer Gratz, the lead plaintiff in the Supreme Court\u2019s\u00a02003 case<\/a>\u00a0that threw out the University of Michigan\u2019s affirmative action program, campaigned for a state constitutional amendment to prohibit affirmative action.\u00a0 \u201cProposal 2\u201d passed with a wide majority, and it amended the Michigan Constitution \u201cto prohibit all sex- and race-based preferences in public education, public employment, and public contracting.\u201d<\/p>\n

The Sixth Circuit case, unlike\u00a0Gratz v. Bollinger<\/em>, 539 U.S. 244 (2003), was not a traditional Equal Protection challenge to an affirmative action program.\u00a0 Rather,\u00a0Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich.<\/a>\u00a0<\/em>was a challenge to Proposal 2 itself.\u00a0 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.<\/p>\n

Under the Michigan constitution, the state universities\u2019 governing boards are elected, and once elected, they enjoy independence from the state legislature.\u00a0 The Sixth Circuit describes the boards as having \u201cabsolute authority\u201d over their institutions.<\/p>\n

Proposal 2, by removing the boards\u2019 authority to include affirmative action programs within admission standards, reordered the state\u2019s political process to the detriment of minority groups.\u00a0 Crucial to the Court\u2019s decision is the finding of a \u201ccomparative structural burden.\u201d\u00a0 The court points out that \u201c[a]n interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race.\u201d\u00a0 They can lobby the admissions committees, deans, or the governing boards.\u00a0 \u201c[T]he only option that remains open for proponents of race-based admissions criteria,\u201d however, is campaigning for another amendment to the Michigan Constitution, an \u201cexpensive, lengthy, and complex\u201d process.\u00a0 Because the programs that are burdened by the change \u2014 affirmative action in admissions \u2014 benefit minority groups, the proposal denies those groups some ability to participate in the political process and offends the Equal Protection Clause.<\/p>\n

The majority relied on two Supreme Court cases.\u00a0\u00a0Hunter v. Erickson<\/em>, 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.\u00a0\u00a0Washington v. Seattle School District No. 1<\/em>, 458 U.S. 457 (1982), struck down a state law that prohibited racially integrative busing.\u00a0 Both cases involved laws that removed authority over certain race-based decisions from a local level \u2014 the city council and school board, respectively \u2014 and placed it at a more remote level: the citywide electorate and the state legislature.<\/p>\n

Proposal 2 similarly removed authority over one decision, affirmative action, from the governing boards to the state constitutional amendment process.\u00a0 The finding of a \u201ccomparative structural burden\u201d hinged on the political accountability of the governing boards.\u00a0 The court said citizens can lobby the boards to adopt admissions policies they prefer.<\/p>\n

The majority and the dissent differ over whether those setting admissions criteria are really accountable to the public.\u00a0 Who actually sets the universities\u2019 admissions standards?\u00a0 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 \u201chave fully delegated the responsibility for establishing admissions standards\u201d to faculty admissions committees. One dean even warned that a board\u2019s attempt to alter a committee\u2019s admissions criteria \u201cwould precipitate a constitutional crisis.\u201d\u00a0 The dissent notes that tenure insulates these faculty members from any political accountability.\u00a0 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.<\/p>\n

In addition to this disagreement, the majority and dissent argue over whether to draw a distinction between laws that burden minorities\u2019 ability to\u00a0stop discrimination\u00a0<\/em>and laws that burden their ability to\u00a0obtain preferential treatment<\/em>.\u00a0 The dissent relies on a Ninth Circuit decision that drew such a distinction.<\/p>\n

Will the Supreme Court weigh in on this split among the circuit courts? In\u00a0Parents Involved v. Seattle School District No. 1<\/em>, 551 U.S. 701 (2007), the Roberts Court seemed skeptical of any race-based distinction, even one that ostensibly benefits minority groups.\u00a0 Will the Roberts Court agree with the Ninth Circuit?\u00a0 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\u2019t affect minorities\u2019 ability to address de jure discrimination?<\/p>\n

If the Court stays true to\u00a0Hunter\u00a0<\/em>and\u00a0Seattle<\/em>, it will be hard pressed to justify such a distinction. In\u00a0Seattle<\/em>, the school district did not implement busing under a court order to address past discrimination, but the removal of the district\u2019s 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.<\/p>\n

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 \u2014 regardless of whether the proponents seek to end discrimination or give minorities a leg-up.\u00a0 States cannot require supporters of affirmative action or busing to jump through hoops that supporters of other policies do not face.\u00a0 The Equal Protection Clause protects racial minorities,\u00a0gay and lesbian citizens<\/a>, 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

Billy Corriher A recent decision from the Sixth Circuit provides a new chapter\u00a0in the long legal battle over affirmative action […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[2],"tags":[],"class_list":["post-914","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-eK","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/914","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=914"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/914\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=914"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=914"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=914"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}