By William Yeomans, 
Fellow in Law and Government at American University
Washington College of Law

William Yeomans

Bill Yeomans

Last week, as Congress wallowed in Tea Party induced dysfunction and the Executive Branch hobbled through the shutdown, the Supreme Court declared itself essential and continued its relentless march toward evisceration of remedies for racial discrimination. The latest assault comes in the form of Schuette v. Coalition to Defend Affirmative Action, in which the Court heard argument on Oct. 15. The case marks the return of affirmative action in higher education to the Court less than four months after the Court spanked the University of Texas in Fisher for its consideration of race in admissions. The outcome in Schuette promises to be even more painful for state universities in Michigan.

In 2003, the Court rendered a split decision on affirmative action in the twin cases of Gratz v. Bollinger and Grutter v. Bollinger. While the Court struck down the affirmative action program governing undergraduate admissions to the University of Michigan, it upheld the use of race as one factor in admissions to the University’s law school. Ward Connerly, who has made a career of launching referenda to eliminate affirmative action, went to work immediately, with the assistance of Jennifer Gratz, the anti-affirmative action plaintiff who had successfully challenged the undergraduate admissions program. Their goal was to convince the people of Michigan to amend the state constitution by referendum to eliminate all racial “preferences” in government decisionmaking. The referendum was adopted with the support of some 60 percent of white voters. Minority voters overwhelmingly opposed it. In the simplest terms, the white majority voted to deprive minority residents of the state of a benefit that had been declared lawful by the Supreme Court and that the universities of Michigan wished to continue.  It hardly bears stating that submitting minority rights to referendum rarely works out well for the minority.  

It hardly bears stating that submitting minority rights to referendum rarely works out well for the minority.

Two groups of plaintiffs challenged the constitutionality of the referendum in federal court. They argued that the referendum ran afoul of the “political restructuring” doctrine of the Equal Protection Clause. This doctrine had been applied in two cases to strike down similar measures. The first, Hunter v. Erickson, in 1969, held that Akron, Ohio could not amend its charter to require that any ordinance requiring fair housing had to be submitted to referendum. The second, Washington v. Seattle School District, in 1982, invalidated a statewide referendum that decreed that school busing could be used for any purpose other than desegregation. The referendum was a response to the adoption of a school desegregation plan by the City of Seattle. In each case, the Court held that the Equal Protection Clause did not permit a governmental body to single out an issue addressing protections based on race and move decisionmaking power over that issue to a higher level. So, in Akron, whereas other comparable ordinances could be adopted by a majority of the city council, fair housing protections could be adopted only by the more burdensome avenue of a referendum. And, the City of Seattle could adopt busing for desegregation only if it succeeded in amending the state constitution. Similarly, proponents of affirmative action in Michigan, rather than having simply to persuade the university Board of Regents, would have to amend the state constitution.

Opponents of affirmative action scoff. They argue that the people are sovereign and a referendum is the purest form of democracy. In their view, the people of Michigan have simply voted to prohibit all forms of racial discrimination, which includes consideration of race in university admissions.

The district court held in favor of the referendum, but the Sixth Circuit Court of Appeals, sitting en banc, reversed by a vote of eight to seven. The conservative members of the Supreme Court voted to take the case (it only takes four) in order to uphold the ban on affirmative action. Justice Kagan has recused herself, presumably because she had some involvement in the case while she was Solicitor General. Because of the Court’s secretive and largely lawless recusal practices, we don’t know for sure.

Unfortunately, the four most conservative members of the Court agree with the dissenters in the Sixth Circuit. They believe that the Equal Protection Clause not only permits, but requires the ban on consideration of race dictated by the referendum. As usual, Justice Kennedy holds the key vote. Sadly, he offers faint hope. On matters of race, he has declined to join his four more radical colleagues in holding that race can never be considered in government decisionmaking, but he has never voted to uphold a program that took race into account.

Justice Anthony: Once again, the likely swing vote

Justice Anthony: Once again, the likely swing vote

At the argument on Tuesday, Justices Sotomayor and Ginsburg struggled valiantly to place this case squarely within the rule laid down in Hunter and Seattle. Unsurprisingly, there was no hint from the four radical conservatives of anything other than support for the referendum and hostility to its own precedents. Justice Kennedy showed no sign of support for the challenger, but appeared to search for ways to uphold the referendum without overruling Hunter and Seattle. He may attempt to distinguish them by portraying the measures involved as efforts to block equal treatment based on race, while portraying the Michigan referendum as a legitimate effort to eliminate racial distinctions.

It, therefore, appears likely—and I hope I’m wrong—that the Court will strike another blow against the nation’s progress toward a more just society. The Roberts Court’s record on matters of race reveals the rigid ideological commitment of the conservative legal movement to denial of the history of race in this country and the continuing harm that our centuries-long racial caste system has inflicted on minorities and the nation. In its short tenure, it has already dealt a death blow to voluntary school desegregation, gutted the Voting Rights Act, and restricted affirmative action. This Term promises more damage to affirmative action and poses a threat to the Fair Housing Act in a case from New Jersey in which the Court is threatening to defy the unanimous view of the Courts of Appeals and hold that discriminatory effects are not sufficient to violate the Act.

Ironically, by the time the nation completes the celebration of a series of historic anniversaries—the 60th anniversary of Brown, the 50th anniversary of the 1964 Civil Rights Act and the Voting Rights Act of 1965, and in a few years the 50th anniversary of the Fair Housing Act of 1968—we may be celebrating carcasses left behind by a destructive band of conservative Justices.