On Schuette v. Coalition to Defend Affirmative Action and Circuit Splits

On the docket this week are two cases that we’re interested in.  The first case, appearing before the Court Tuesday (October 15th) at 1pm, is called Schuette v. Coalition to Defend Affirmative Action.

The 5-minute explanation of the case:  This case is different from the affirmative action case of last season (Fisher v. University of Texas).  The state of Michigan struck down affirmative action in response to a controversial U.S. Supreme Court case in 2003 about admissions practices at universities.  In that case (Grutter v. Bolinger), Justice Sandra Day O’Connor said the use of race was permissible as one factor, among several, in a holistic approach to admissions practices at public schools.  In 2006 Michigan amended their state constitution banning affirmative action by way of a ballot initiative (the voters decided, if you will).  The question this case asks is: Can a state abolish affirmative action programs through ballot initiative if the U.S. Supreme Court and federal government say affirmative action programs are constitutional?

The 15-minute explanation of the case:  This case was granted certiorari (the official term for when the Court says “Ok, we’ll hear your complaint” to petitioners) likely because of a circuit split.  There are 13 federal district courts of appeals, with several states falling under the jurisdiction of one federal court.  Here’s a map to explain it better:

A circuit split is when one federal court renders a decision that is different from another federal court on a similar matter.  When circuit courts split, it’s a very good sign that the U.S. Supreme Court – the last court of appeals – will take the case to iron out the wrinkle between two parts of the country.

In 2003, the Supreme Court decided, in Grutter v. Bollinger, that affirmative action efforts, like using race as one of several factors when considering applicants for admission to the University of Michigan, was permissible.  Three years later, in a clear reaction to the Grutter decision, a ballot initiative known as Proposition 2 was passed by a majority of Michigan voters abolishing affirmative action programs.  The state’s constitution was amended to reflect successful passage of Prop. 2.

Ok, so here is where things get a little sticky, so stay with us.  Proposition 2 was challenged by a group called Coalition to Defend Affirmative Action By Any Means Necessary (aka BAMN…or “BAMn!!”) to the 6th Circuit Court of Appeals .  As you can see from the map above, Michigan falls under the jurisdiction of the 6th Circuit.  BAMN won in the 6th Circuit when they challenged the constitutionality of Prop 2 saying that it violated the Equal Protection Clause of the 14th Amendment. Here’s the explanation of the 6th Circuit’s ruling, courtesy of SCOTUSblog:

“The passage of Proposal 2 violated a rarely used doctrine called the political restructuring doctrine.  Here is the crux of the respondents’ argument, accepted by the Sixth Circuit:  if an applicant to the University of Michigan believes that legacy status or some other non-race-related quality should be taken into account in admissions, he can petition the Board of Regents to include that quality as a factor to be considered in admissions.  If a person of color believes that race should be taken into account in admissions, he can no longer ask the Board of Regents to adopt that policy, but instead must seek an amendment of the state constitution.” [the rest of SCOTUSblog writer Melissa Hart’s article is here.]

What does this mean?  We think BAMN’s point was that preferences – be they familial, racial, athletic, or geographic – already exist, but legally banning one class of individuals from taking advantage of a preference is no fair.  Maybe it’s a bit easier to explain using a hypothetical.

Let’s say you’re a high school student who wants to help your chances of getting into the University of Michigan by advocating to the admissions Board of Regents that you’re the child of a U of M graduate.  Lots of college applicants are the children of graduates and hope their familial relationship might give them an extra advantage and acceptance. This would classify you as a legacy applicant, which some universities have a preference for, and the Board could take your request into consideration.  Or, maybe you’re from a part of the state that rarely represents the student body at the university and want the Board to give you a preference for this geographical void.  You also can petition the Board requesting special consideration, a preference if you will, for acceptance.  However, if you’re a student of color who wishes to self-advocate on the basis of race, you would first have to amend the constitution before you can petition to the Board of Regents.  This is harder.  A lot harder.  Hard enough that the 6th Circuit felt it denied certain citizens (in this case, applicants of color) equal protection under the law.

Ward Connelly, an affirmative action opponent, and the Attorney General of Michigan, Bill Schuette (pronunciation of his name has varied between “Shut-ee” and “Shoe-ett”), are petitioning the Supreme Court to overturn the 6th Circuit Court decision, which found in favor of BAMN.  Schuette thinks the “Michigan law promotes equal protection by prohibiting affirmative action, and therefore cannot violate the Equal Protection Clause.”  BAMN, conversely, “argues that equal opportunity affirmative action policies are anti-discrimination measures designed to secure equal protection of the laws.”  Although the use of race in deciding who gets into a state school or gets a state job is not exactly treating all candidates the same, BAMN’s position is that affirmative action programs are the only proven way groups that were historically denied access to education and employment can get such opportunities.  Further, their point is that if preferences in admissions or hiring practices already exist, why should racial preferences have a special constitutional ban?  The 6th Circuit agreed in a 7-6 decision. California had a similar ballot initiative (Prop 209) that was brought to the 9th Circuit Court. In this case, the court ruled different from the 6th (i.e. that the law did not violate the 14th amendment), hence the split in the two circuits and the reason the SC is hearing this case.

It’s important to understand the SC isn’t going to rule explicitly on affirmative action in all admissions practices at universities or hiring practices at state government offices. But it is going to teach us more about the political restructuring doctrine (referenced above), which comes from Justice Blackmun’s opinion in a case involving busing in Seattle (1980s).  It’s worth noting that only two previous SC cases have referenced this doctrine (legal trailblazing = cool!).  Finally, for whatever stock you put into records, the 6th Circuit doesn’t have the best one at the SC.  According to former SG Neal Katyal, 25 of the last 26 cases to come out of the 6th Circuit have been struck down by the SC.

Here’s a video to help you understand more about the case:

Decision update:  6-2 voted in favor of upholding the ballot initiative (Prop 2) in Michigan.  The majority, of which there is a patchwork quilt of different Justices agreeing to portions of the decision and thus three concurrences, agreed with the voters’ efforts to ban race-based affirmative action programs in universities.  The two dissenters were Justices Sotomayor and Ginsburg.  Justice Kagan recused herself in this case.

Justice Kennedy read the majority opinion which was rooted in a confidence that the will of the voters to impact state law by putting an issue to a vote is compelling enough to support the outcome of that vote.  In this case, the will of the voters of Michigan was to ban the use of race as a factor in state college admissions acceptance processes.  “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it….The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.”  As for ruling on the precedent set in the 1980s, Kennedy said “The theory was not essential to the result in that case, and was itself a form of encouraging an unhealthy tendency to group minority individuals together as if they commonly shared the same views on public policy.” (Source: Lyle Denniston)

This decision is a win for anti-affirmative action supporters who criticize repairing the wrongs of historical discrimination with state or federal action based on race that in turn discriminate.  It’s also a victory for Schuette and organizations like the Project on Fair Representation – the group that helped get Abigail Fisher’s lawsuit against the University of Texas in 2013 to the SCOTUS – who can use this decision to lay the groundwork to chip away at hiring practices and contract rewards that use race as a factor.  Momentum is evident in that there have been three cases over the last year in which race was at the center or periphery of each one.  Edward Blum’s Project on Fair Representation provided the financial backing to get two of the three in the SCOTUS (Fisher & Shelby County).  He’s been called a Supreme Court “matchmaker” and is not alone among private interest groups who match litigants with sterling attorneys marching their cases all the way to the Court.  We predict such groups will continue to push such affirmative action cases to the SCOTUS in the near future and it seems evident they have a willing ear at the SCOTUS.