Supreme Court Appears Likely to Uphold Racial-Preference Bans

October 16, 2013

The U.S. Supreme Court appeared on Tuesday to be leaning toward upholding state prohibitions on race-conscious admissions at public colleges as the justices heard arguments in a lawsuit challenging a ban passed by voters in Michigan.

Justice Anthony M. Kennedy, widely regarded as the swing vote in the case, joined justices with more-conservative reputations on racial matters in expressing skepticism toward the argument that Michigan's ban represented a discriminatory restructuring of the political process to put members of minority groups at a disadvantage in influencing admissions policies. Only two liberal members of the court—Justice Ruth Bader Ginsburg and Justice Sonia M. Sotomayor—voiced sharp criticisms of the Michigan measure, adopted as an amendment to the state's Constitution in 2006.

With one of the court's four liberal members, Justice Elena Kagan, having recused herself from hearing the case, as a former U.S. solicitor general, the odds appear in favor of the court's overturning last year's decision by the U.S. Court of Appeals for the Sixth Circuit to strike down Michigan's amendment as a violation of the U.S. Constitution's equal-protection clause.

A decision to uphold Michigan's ban would have the effect of leaving intact a similar California measure that has twice survived challenges before the U.S. Court of Appeals for the Ninth Circuit. It would also keep firmly in place similar bans adopted by voters in Arizona, Nebraska, Oklahoma, and Washington, by the governing board of Florida's public universities, and by lawmakers in New Hampshire, potentially encouraging campaigns for similar measures elsewhere.

Looking Back

Most of Tuesday's deliberations in the Michigan case, Schuette v. Coalition to Defend Affirmative Action (No. 12-682), focused on how the state's ban on racial preferences in admissions comported with the equal-protection clause of the 14th Amendment of the U.S. Constitution, a bedrock civil-rights measure adopted in the wake of the Civil War.

The State of Michigan defended its ban as echoing the 14th Amendment's own prohibition of discrimination. Race-conscious admissions policies already are "barely permissible" under Supreme Court precedents subjecting them to strict judicial scrutiny, Michigan's solicitor general, John J. Bursch, argued. "It cannot be unconstitutional for the people to choose not to use them anymore," to move "into a race-neutral future," he said.

But Mark D. Rosenbaum, a lawyer representing a group of students challenging Michigan's amendment, argued that the measure unconstitutionally "creates two playing fields" for those wishing to influence college-admissions policies. Whereas other constituencies, such as alumni or residents of rural areas, can lobby university boards or administrators for favorable treatment in admissions, Michigan's minority residents cannot gain such advantages without mounting a successful campaign to repeal an amendment that passed easily in a state that is 85 percent white.

"The people of the state have multiple options available to them if they don't like the way the universities are operating. But the one option they don't have is to treat racial matters different from all other matters," said Mr. Rosenbaum, a law professor at the University of Michigan at Ann Arbor and chief counsel of the American Civil Liberties Union in Los Angeles.

A similar argument was offered by Shanta Driver, a lawyer for a second group of plaintiffs, consisting of students, college applicants, University of Michigan faculty members, and the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary, which she leads. She got into a heated exchange with Justice Antonin Scalia by urging the court "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority."

Justice Scalia responded, "My goodness, I thought we've held that the 14th Amendment protects all races." He asked: "Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?"

Ms. Driver responded, "No case of yours."

Questions of Motive

In the Sixth Circuit's 8-to-7 decision striking down Michigan's ban, the majority relied heavily on two U.S. Supreme Court precedents: its 1969 ruling in Hunter v. Erickson, in which the court struck down an Akron, Ohio, ballot initiative that required voter approval of any city ordinance regulating real-estate transactions based on race; and its 1982 ruling in Washington v. Seattle School District No. 1, in which the court struck down a state ballot measure that prohibited school districts from voluntarily adopting busing policies to promote school desegregation.

In Tuesday's Supreme Court debate over the Sixth Circuit's ruling, the two sides differed sharply on how to apply such precedents, or whether they should be rejected as no longer applicable, given subsequent changes in the law.

Mr. Rosenbaum said that the issues raised in the Seattle precedent and the Schuette case are identical because in both "the objective was to obtain diversity."

Mr. Bursch argued, however, that Michigan's ban on racial preferences differed from the measures at issue in the Hunter and Seattle cases in that it did not repeal an antidiscrimination law. In Hunter and Seattle, he said, the court rejected efforts to end policies that primarily benefited minority members, but the Supreme Court's 2003 Grutter v. Bollinger decision, upholding the use of race-conscious admissions by the University of Michigan's law school, held that such policies must educationally benefit all students, not just the members of racial or ethnic minority groups.

Justice Ginsburg cited past allegations that Michigan's amendment had been motivated by racial animus as reason to doubt claims it promotes equal opportunity.

In response, Mr. Bursch told her a federal district court had soundly rejected such accusations as to the measure's intent, and rattled off a list of nondiscriminatory reasons voters supported it. Among them, he said, were beliefs that racial preferences are themselves discriminatory, or set up minority students for academic failure, or are not the only means of ensuring sufficient levels of racial diversity in college enrollments.

Weighing Options

Tuesday's deliberations dealt only tangentially with the legality of race-conscious admissions policies, which the Supreme Court most recently upheld in a June decision involving the undergraduate admission policy at the University of Texas at Austin. But there was considerable debate over the effect on enrollment of Michigan's ban.

Mr. Bursch characterized the picture painted by enrollment statistics as "muddy," and attributed some of the perceived drop in the University of Michigan's black and Hispanic enrollments after 2010 to the institution's decision to follow the lead of the U.S. Census by letting multiracial students check off several boxes on admissions forms. When students who check off "black" and one or more other boxes are counted as black, as they might have been under the one-box system, "the number of underrepresented minorities on campus actually comes out higher," he said.

He also argued that the University of Michigan could achieve more diversity without considering race by eliminating admissions preferences for the children of alumni and doing more to enroll lower-income students.

Arguing for the other side, Ms. Driver said Michigan's ban had caused big drops in minority enrollments at the state universities' law, medical, and other professional schools. Mr. Rosenbaum said the ban discourages even efforts to achieve diversity without any use of racial preferences because "the message that is being communicated is that all uses of race are illegitimate, all uses of race are off the table, that 'race' itself is a dirty word."

Justice Kennedy joined Justice Scalia, Justice Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr. in chipping at a central argument by the lawsuit's plaintiffs: that Michigan's amendment represented a restructuring of the political process that influences admissions decisions. They repeatedly pressed Ms. Driver and Mr. Rosenbaum to explain how, exactly, a decision by state voters to preclude universities from using racial preferences in admissions raises questions that would not be raised if such a decision were made by the legislature or by the universities' governing boards.

The two lawyers argued that the key difference is that lawmakers or boards could be lobbied to restore such policies as part of their usual decision making, and that members of minority groups who pushed for such a reversal would be on no different footing than any other constituency lobbying them. Under the Michigan ban, however, members of racial minorities must follow a different political process than other groups in seeking to have such policies changed.

Outside the court, about 200 protesters brought together by Ms. Driver's coalition chanted: "They say Jim Crow, we say hell no!"

In remarks delivered to the news media after the court proceedings, Mr. Rosenbaum said he remained confident the court would throw out Michigan's ban, which he called "an attempt to end racial diversity" at the state's public universities.

Michigan's attorney general, Bill Schuette, the named defendant in the lawsuit, told reporters, "What we need to do is achieve diversity by constitutional means, not by any means necessary." He argued that the solution is not racial preferences but "an education revolution" to ensure "there is better opportunity at urban schools across America."

The court is expected to rule in the case by the end of its current term, in June 2014.