So Much for Stare Decisis: Court Upholds Voter Ban on Affirmative Action

Schuette v. BAMN: Another Blow to Affirmative Action[1]

On April 22nd, the Supreme Court affirmed the constitutionality of a Michigan referendum that outlawed affirmative action in Schuette v. BAMN. Under Chief Justice John Roberts, the Supreme Court has issued a series of decisions that undermine the achievements of the Civil Rights Movement. Schuette represents the latest episode in this unfortunate trend.

In 2006 Michigan's Civil Rights Initiative ("Proposal 2") amended the State's Constitution to prohibit "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." A coalition of Civil Rights groups filed a civil action claiming that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment because it altered the state's political process in a manner injured racial minorities.

Applying the “political process” doctrine, the Sixth Circuit held that Proposal 2 created a special burden on racial on minorities that was not imposed on other groups. The Court relied on the rulings in Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle Sch. Dist. No. 1 (1982). Those cases held when a majority of the electorate modifies the political process in a manner that burdens a racial minority's ability to participate on an equal basis in the political process, it deprives that group's rights to equal protection under the Fourteenth Amendment.

In Hunter v. Erikson the City of Akron, Ohio, enacted a fair housing ordinance that pro­hibited racial discrimination in housing. Voters responded by amending the city charter to overturn the ordinance and to require any additional antidiscrimination housing ordinances be approved by a referendum. Other ordinances regulating the real property market were not subjected to similar requirements. The Supreme Court found that by singling out antidiscrimination ordinances, Akron's city charter amendment placed a special burden on racial minorities' participation in a governmental process that was not imposed on other groups.

In Washington v. Seattle Sch. Dist. No. 1, a school board adopted a busing program to promote racial diversity in schools. Voters who opposed the school board’s plan enacted a state initiative that prohibited busing to desegregate schools. The Court found that the practical effect of the state's initiative was to remove the authority to address a racial problem from the existing decision making body in a way that unduly burdened minority group's participation in the political process.

Applying the same reasoning, the Sixth Circuit struck down Proposal 2 in Schuette because it established a distinct and more burdensome politi­cal process for the enactment of University admissions plans that considered racial diversity. Donors, athletic officials, religious organizations, and alumni can advocate that Michigan's public universities include their constituents in admissions decisions. Racial and ethnic minorities and others who support greater student body diversity were effectively precluded from doing so.

In an 8-2 decision the Supreme Court reversed the Sixth Circuit. The majority ruled that courts cannot prohibit a state's voters from choosing to outlaw affirmative action programs.  Justice Kennedy's plurality opinion in Schuette sought to distinguish Hunter and Seattle on the grounds that Proposal 2 did not inflict the type of injury involved in those cases. However, it left unexplained how the injury to minority groups in Schuette is different.

As in Hunter and Seattle, voters in Michigan imposed burdens on minorities' efforts to influence university admission policies that were not established for other groups. The plurality opinion conceded that Hunter and Seattle applied, but claimed that those decisions took an unduly expansive view of the Equal Protection Clause and are no longer viable precedents. So much for stare decisis.

Chief Justice John Roberts and Associate Justice Samuel Alito joined Kennedy's plurality opinion. Justice's Clarence Thomas and Antonin Scalia would have overruled Hunter and Seattle outright. Justice Stephen Breyer concurred with the result based on a different legal rationale. Justice Sotomayor issued a strongly worded dissent which was joined by Justice Ruth Bader Ginsburg.

Kennedy's plurality opinion emphasized that the decision in Schuette did not disturb the ruling in Fisher v. University of Texas which held that consideration of race in University admissions is permissible. However, Fisher made race conscious affirmative action plans far more difficult to justify. The Schuette decision is just as damaging as it likely to encourage other states to enact similar bans on affirmative action.
 

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[1] Leland Ware, Louis L. Redding Chair and Professor of Law & Public Policy University of Delaware