On Tuesday, the Obama Administration issued guidance via a “Dear Colleague” letter to colleges and universities, clarifying for them that the latest Supreme Court Affirmative Action decision issued last month still permits schools, colleges and universities to consider race in admissions decisions under certain conditions.
But what the letter top Education and Justice department officials sent to elementary, secondary and universities did not say was that they have to bide their time and prepare for more challenges. Indeed, the recent case represents a further chipping away at the interpretation of the Equal Protection Clause of the 14th Amendment.
In the case handed down on April 22,, the majority conservative justices on the bench sought to protect a voter referendum forbidding the University of Michigan from using race-conscious admission policies arguing that the 14th Amendment requires the government to treat all citizens equally. The language from the Equal Protection Clause of that amendment, opponents of Affirmative Action argue, also prohibits discrimination against Whites and Asians, in many cases of competitive admissions where there is an abundant number of Asian-American college applicants surpassing their proportion in the US population.
Attempts to Change The Equal Protection Clause
But this is a newer, modern reading of the 14th Amendment which was adopted after slavery and was relied upon to dismantle state-sanctioned Jim Crow practices of the 1960s. It was never meant to protect Whites and as a case referenced in the opinion notes, whites haven’t needed protection from racial discrimination, historically.
Yet, over the past few decades, there has been a concerted effort in a series of Affirmative Action challenges to change the Equal Protection Clause, by turning it on its head and using it to dismantle race-conscious policies in school admissions (Bakke, Michigan, insert others) and government contracting (Metro, Adarand). The new interpretation seeks to prohibit minorities from benefiting from preferences thought to harm the majority race.
Recall the last time the U.S. Supreme Court made a decision in a case involving race-conscious admissions was in the University of Michigan Law School case in 2003, Grutter v. Bollinger. In that case, the Court decided that numerical set-asides to achieve racial diversity in college admissions and quotas was impermissible. Yet, in a 5-4 decision, the majority, more liberal justices found that diversity is a compelling government interest and that schools can craft admission policies that are not quotas to achieve diversity. Once a state school studies its admission history and determines that all other race-neutral options have failed to achieve diversity.
The Schuette Case
And it was that case that precipitated the referendum that was the center of this Schuette case. That holding emboldened parties and institutions with deep pockets who are opposed to Affirmative Action to take steps to get a referendum on the ballot in Michigan and amend the constitution to prohibit race used in Admissions. A coalition which gave itself the ingenuous name, Michigan Civil Rights Initiative, reportedly so it could convince some black and Latinos to help gather the 260K+ signatures needed to put an initiative on the ballot, Proposal 2. This initiative would remove the ability for university administrators and boards to adopt admissions policies that consider race.
To much surprise, because early indicators suggested it was unpopular, the initiative passed. It is now Article I, Section 26, an amendment to the Michigan Constitution. Once passed, the anti-affirmative action groups challenged the Michigan university’s admissions policy for violating the state constitution.
The Federal Appellate court in the 6th Circuit struck the amendment on appeal for going against a Supreme Court case which prohibits states from putting up higher hurdles for minorities to participate in the political process.
The court was referring to the “political-process doctrine” which permits the judiciary to strike an action that changes or adds an additional layer of processes in a way that denies minorities the ability to participate in democracy equally and fairly. This treatment in race and politics was created by two past US Supreme Court cases: Washington v. Seattle School District and Hunter v. Erickson.
In Hunter, a referendum voted by the majority of voters in the city of Akron, Ohio attempted to shut down an anti-discrimination in housing ordinance passed to address widespread racial discrimination in housing sales and rentals. The referendum amended the city charter to remove the anti-discrimination law. Similarly, in Seattle, shortly after desegregation efforts were under way in Washington in the 1960s, like many other cities back then, the city amended its laws to stymie bussing and other desegregation efforts by the school board. Both cases were overruled under that doctrine.
Justice Sotomayor Reaches Correct Conclusion
Justice Sotomayor, in an opinion to this case, agreed that the referendum in this Michigan case was another example of the majority using their numbers to make it harder for minorities to get a law passed that would benefit them. Given that race-conscious admission policies only benefited Black and Hispanic college applicants, it would be a hard haul for that group to successfully get its own ballot initiative passed in order to amend the constitution. Meanwhile, Sotomayor noted, recipients of legacy admissions or athletic scholarships only needed to convince the college governing bodies if they wanted to promote admission policies that impacted them. She argued that the Supreme Court owed it to itself to follow its own precedents or findings from recent cases and apply them to this case and consequently strike the amendment. But in this case the majority in an opinion written by Justice Kennedy focused more on the argument that voters have the right to overrule their government, and based on that reasoning reversed the federal court and upheld Michigan’s anti Affirmative Action amendment in its Constitution.
But Sotomayor was right.
The case is not about whether the framers of the Constitution imagined a time when the voters would be able to interject themselves in the process and create law directly rather than through elected officials, but about the burden it created. (This reasoning espoused by the swing vote in this case, the usual liberal Justice Breyer). For minorities who would benefit from race-conscious policies to undo the amendment, they’d have to undergo the costly and burdensome ballot initiative process. That is the change in process and burden that triggers the political process doctrine that past US Supreme Courts have used to strike down referendums like this one.
While democracy does in fact empower majority rule vote, historically, in US history and judicial jurisprudence, courts have and continue to curtail when the majority exercise their power in numbers to suppress or oppress minorities based on race, Sotomayor opined.
Unfortunately, for Affirmative Action proponents, Sotomayor’s opinion was the minority opinion. Justice Kagan had to recuse herself because she worked on the case while Solicitor General before being seated on the Bench, leaving only Justice Ginsburg, the only other woman on the Court to side with her.
And as Justice Sotomayor wrote in her dissent, in order for them to distinguish the Seattle and Hunter cases, they have to acknowledge first that the political process doctrine existed to empower the judiciary to stop abuse of power by the minority – and that the majority’s decision isn’t always in the best interest of society.
Scalia Would Overturn all Past Decisions Recognizing Racial Impact in Laws
And that is why, perhaps, Justice Scalia brazenly wrote in his separate concurring opinion that if it were up to him he would overrule those laws altogether. The opinion acknowledged that a race-neutral law could have a disparate impact on minorities yet Scalia disagrees, or doesn’t want to accept that some laws do in fact negatively affect one racial group more than another. Instead, he thinks that a law must be crafted to intentionally harm minorities, not simply have a disparate impact.
To admit that would require him to accept a host of other disparities in our criminal and civil justice system and it’s clear he wouldn’t want to do that.
Instead, Scalia used his concurring opinion to further expound upon his own personal disdain and animosity for any law that benefits minorities, suggesting “it is hotly disputed whether the practice of race-based admissions is ever in a minority’s interest.”
He further wrote that the Equal Protection clause wasn’t created to protect groups of people but the individual. Except when that individual is black or Hispanic and he needs protection from a policy that targets him personally as an African American or Latino, then what?
The fact remains, the framers were indeed protecting one group, Black Americans and that was their intent, and a man who usually insists on staying close to the intent of the framers is willing to bend in this case and contort the intent of 14th Amendment so it is a law to protect Whites, not as initially intended.