The Supreme Court heard two cases during this term and agreed to review another next term that may result in setbacks for voting rights and affirmative action. One case involves voting rights, another focuses on affirmative action. The third case will consider "political structure Equal Protection" which prohibits state and local governments from imposing special burdens on minority groups' participation in the electoral process.
Voting Rights: Shelby County v. Holder
On February 27, 2013, the Supreme Court heard oral arguments in Shelby County v. Holder. The case involves a challenge to the constitutionality of the Voting Rights Act (VRA). Jurisdictions "covered” under Section 5 of the VRA must obtain authorization from the Justice Department before they can change their voting procedures. This requirement was imposed on jurisdictions with long histories of severe voting abuses. In 2006 Section 5 was extended for 25 more years.
Shelby County claims the legislative record of the VRA's 2006 reauthorization lacks sufficient evidence of systematic voting discrimination in covered jurisdictions. The argument is conditions now are not what they were in the 1960s; that Section 5 is unconstitutional because it is no longer "congruent and proportional" to the problem it seeks to cure.
In a 2009 case, Nw. Austin Mun. Util. Dist. No. One v. Holder, Chief Justice John Roberts declared the "exceptional conditions prevailing in certain parts of the country justified extraordinary legislation" in 1965, but those barriers no longer exist. Justice Clarence Thomas agreed. This prompted several challenges to the VRA including this litigation.
In Shelby County the lower courts reviewed the evidence on which Congress relied when it reauthorized Section 5 in 2006. That evidence included thousands of pages of testimony, reports and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of Section 5 objections; judicial preclearance suits and Section 5 enforcement actions. This included some old tactics and many new, "second generation" violations that are disenfranchising minority voters.
This record would ordinarily be sufficient to affirm the validity of Section 5. The well-established principle that the Supreme Court should "invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." That is hardly the case with Section 5. However, during the oral arguments Justice Antonin Scalia dismissed this doctrine saying “[t]his is not the kind of question you can leave to Congress.” He also disparaged Section 5 as a "racial entitlement."
Pronouncements like these suggest the case could end with a majority striking down Section 5, although it is difficult to predict which side Justice Anthony Kennedy will join. Unlike Roberts, and Thomas, Kennedy may not be willing to strike down an act of Congress that does not plainly exceed the powers granted to Congress by the Fifteenth Amendment. His vote will likely determine the outcome of the case.
Affirmative Action: Fisher v. University of Texas
On October 10, 2012, the Supreme Court heard oral arguments in Fisher v. University of Texas. The challengers in Fisher are Texas residents who were denied admission to the class entering the University of Texas (UT) in 2008. They contend UT’s race-conscious admissions policies are unconstitutional because they go beyond promoting the educational benefits of diversity and seek to achieve a student body that reflects the of State of Texas' racial composition. This, they claim, is an unconstitutional effort to achieve racial balance.
The challengers also argue that Texas did not give adequate consideration to race-neutral alternatives. Their other argument is minorities have already achieved a "critical mass" under the "Top Ten Percent" law, making additional efforts to promote diversity unnecessary.
Texas' admissions process divides applicants into three groups: Texas residents, domestic nonresidents, and international students. Students compete for admission against other students in their respective pools. Texas residents are allotted ninety percent of all available seats.
Under Texas' Top Ten Percent law, students with grades in the top tenth percentile of their high schools' graduating classes are automatically admitted. Applicants who are not in the top ten percent compete for admission based on their academic and personal achievement indices. The academic index is based on SAT scores and grades.
The personal index is based on a score awarded for of two required essays and a "personal achievement score" which represents a "holistic" evaluation of the applicant’s file. Race is considered as one element of the personal achievement score, but that is only one component of the total personal academic index.
To survive "strict scrutiny," the legal standard that applies to policies that classify on the basis of race, the government must have a "compelling justification" for doing so and the means chosen must be "narrowly tailored" to achieving a legitimate governmental interest. In 2003 in Grutter v. Bollinger, the Supreme Court applied strict scrutiny to affirm the constitutionality of University of Michigan's affirmative action admissions program.
Anthony Kennedy dissented from the outcome in Grutter because he believed Michigan's admission program was not narrowly tailored, but he made clear his support for efforts to promote student body diversity. He wrote "there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity."
In a 2007 case, Parents Involved in Community Schools v. Seattle School District, Justice Kennedy cast the deciding vote in a decision that struck down diversity plans for elementary and high schools in which race could be a “tie breaker” in determining who was assigned to a given school. Kennedy concluded that the assignment plan was not narrowly tailored but he wrote a separate opinion in which he affirmed his belief that governments can use race-conscious policies designed to promote diversity.
What Kennedy does not seem to like are selection procedures that allow race to be the deciding factor in who is admitted and who is not. At UT an admission decision could be different when applicants have identical attributes except for race. In such a case, race could be the deciding factor.
The final outcome in Fisher is difficult to predict. Since Justice Elena Kagan recused herself only eight justices will participate. Four of them, Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Chief Justice John Roberts have made it clear that they are opposed to all forms of affirmative action. This means the outcome depends on Kennedy, who has been unwilling to go that far.
A 4-4 tie would leave the Fifth Circuit’s decision upholding affirmative action intact. Another possible outcome would be similar to Parents Involved with Kennedy voting to strike down UT’s program as not narrowly tailored, but supporting affirmative action policies in which race is not the deciding factor. If Kennedy does not change his outlook on diversity, UT could lose but in a decision that would not outlaw all forms of affirmative action.
Political Structure Equal Protection: Schuette v. Michigan Coalition to Defend Affirmative Action
On March 5, 2013, the Supreme Court agreed to hear Schuette v. Michigan Coalition to Defend Affirmative Action. This case does not address the constitutionality of affirmative action policies. This is a political structure Equal Protection claim. The question in this case is whether a State Constitutional Amendment prohibiting the consideration of race in university admission decisions violates the Equal Protection Clause because it imposed a special burden on racial minorities in the electoral process.
The Michigan Civil Rights Initiative ("Proposal 2") amended the Michigan Constitution to prohibit "preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin." A civil action was filed claiming that Amendment impermissibly altered the political process in violation of the Equal Protection Clause of the Fourteenth Amendment. Relying on Hunter v. Erickson (1969) and Washington v. Seattle Sch. Dist. No. 1 (1982), the Sixth Circuit held that Proposal 2 imposed a special burden on racial minorities in the electoral process that is not borne by other groups.
The Equal Protection Clause prohibits measures that require racial minorities to overcome more formidable obstacles to achieve their electoral objectives than those that apply to other groups. The "political structure" doctrine prohibits the government from creating an electoral structure that purports to treat all individuals as equals but distorts governmental processes in a way that imposes special burdens on the ability of minority groups secure beneficial legislation.
In Hunter v. Erickson, the Akron City Council enacted a fair housing ordinance prohibiting racial discrimination. The ordinance was subsequently amended to require approval by a majority of the City's voters before it could become effective. Under the city's normal legislative process, an ordinance took effect at specified time after its passage unless 10 percent of the electorate petitioned for a referendum. The challenged amendment made fair housing ordinances more difficult to enact than other types of housing measures. The Court ruled that the amended ordinance violated the Fourteenth Amendment because it imposed a special burden on racial minorities that was not placed on other groups.
A similar conclusion was reached in Washington v. Seattle Sch. Dist. No. 1. In that case a statewide initiative was adopted to terminate mandatory busing to promote school desegregation. The initiative removed the authority of school boards to address racial problems in a way that burdened minority interests. Those favoring the elimination of de facto school segregation were required to seek relief from the state legislature or from the statewide electorate. The authority over all other student assignment decisions remained with the local school board. The Supreme Court held the initiative violated the Equal Protection Clause because it imposed a special burden on racial minorities in the electoral process that was not borne by other groups.
The same reasoning was applied in Shuette. The Sixth Circuit ruled that when Proposal 2 amended Michigan's Constitution, it removed the authority to adopt affirmative action policies from Michigan’s universities and placed it at the state constitutional level. Proponents of race-conscious admissions policies are now required to obtain the approval of the Michigan electorate and, if successful, they must persuade university officials to adopt affirmative action policies. Proponents of other admissions policies need only obtain the support of the state's universities. This different and more difficult route for Michigan's racial minorities means they do not have an equal opportunity to participate in the policy making process.
This case will be decided during the next Supreme Court term which will begin on the first Monday in October in 2013. Given the record of the Roberts Court and Civil Rights, I am not optimistic. Identical challenges to Proposition 209, which outlawed affirmative action in California, were rejected by the Ninth Circuit a number of times including, most recently, in Coalition to Defend Affirmative Action v. Brown (9th Cir., 2012). The Ninth Circuit found that Proposition 209 was constitutional because it addressed, in a neutral fashion, race-related and gender-related policies. The Court reasoned that Proposition 209 prohibited preferential treatment, not equal protection rights. The Supreme Court will probably take the same approach in Shuette.
About the Author
Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.