The clock ticks on racial preferences

April 2013

It has been a decade since the U.S. Supreme Court upheld the University of Michigan's discriminatory admissions policies. By a 5-4 vote, the justices ruled in Grutter v. Bollinger that the Constitution permitted public universities to employ racial preferences in order to realize "the educational benefits that flow from a diverse student body." In an unusual footnote, Justice Sandra Day O'Connor suggested that the decision had an expiration date: "We expect that 25 years from now, the use of racial preferences will no longer be necessary."

Michigan voters didn't want to wait. In November 2006, by a 58% majority, they approved Proposal 2, a ballot measure prohibiting state and local government agencies from discriminating on the basis of race (or sex, color, ethnicity or national origin).

A plaintiff group with an unwieldy and Orwellian name—the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary—sued. The Sixth Circuit Court of Appeals sided with the coalition, holding in July 2011 that Proposal 2, as applied to higher education, violated the Equal Protection Clause of the 14th Amendment. On Monday the Supreme Court announced that it will hear the state's appeal.

If the appellate-court decision sounds strange to you, you're not alone. How could an antidiscrimination law violate equal protection? How could it be unconstitutional to repeal a regime of racial preferences that barely passed constitutional muster in 2003? The answer lies in a deft, though probably futile, display of judicial gymnastics by Democratic appointees on the Sixth Circuit.

Judge R. Guy Cole, who wrote the circuit court's decision, didn't claim that the Constitution required Michigan's public universities to discriminate in favor of minorities. Instead, he held that the procedure by which preferences had been abolished—a ballot initiative amending the state constitution—had stacked the deck against minority voters. His argument relied on a pair of decades-old Supreme Court precedents.

The first, Hunter v. Erickson (1969), struck down an Akron, Ohio, ballot measure that repealed a municipal fair-housing ordinance and required a voter referendum on any future laws of a similar nature. Justice Byron White wrote for an 8-1 majority that the measure created an invidious distinction "between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends."

The analogy with the Michigan case was certainly imprecise. Whereas the Akron initiative repealed an antidiscrimination law, Proposal 2 was an antidiscrimination law. But Judge Cole's second precedent, Washington v. Seattle School Dist. No. 1 (1982), was more similar to the Michigan case.

Seattle had voluntarily established a forced-busing program to encourage integration in its public schools. In response, voters passed Initiative 350, outlawing busing statewide. Even though the initiative had done away with a system of racial distinction, a 5-4 Supreme Court majority held that it impermissibly burdened minorities, the putative beneficiaries of busing. (Seattle continued using racial preferences in public-school assignments until 2007, when the Supreme Court ordered it to stop.)

To fit Proposal 2 into the legal framework of Hunter and Seattle, the Sixth Circuit judges had to establish, as Judge Cole wrote, that it "has a 'racial focus,' because

the Michigan universities' affirmative-action programs 'inure primarily to the benefit of the minority, and [are] designed for that purpose.' "

But that contradicts the key factual underpinning of Grutter. Justice O'Connor asserted that in order to "assemble a class ... that is broadly diverse" and obtain "the educational benefits that diversity is designed to produce," the university had sought to "enroll a 'critical mass' of minority students." Had the goal been to increase minority representation for its own sake, she averred, that would be "outright racial balancing, which is patently unconstitutional."

The Supreme Court won't hear the current Michigan case (now known as Schuette v. Coalition to Defend) until the fall, by which time Grutter may no longer be good law. That is because the justices have heard oral arguments in another racial-preference case, Fisher v. University of Texas, and a decision is expected by June.

As is typical, the result will likely hinge on Justice Anthony Kennedy. He strongly dissented in Grutter, arguing that the majority had "abandoned or manipulated" its standard of "strict scrutiny" in order to uphold racial preferences. But he also agreed in principle that a university "may take account of race as one, nonpredominant factor" if its "considered judgment that racial diversity among students can further its educational task" is "supported by empirical evidence."

If Justice Kennedy adheres to that position in Fisher, the door will remain at least ajar for racial preferences. But in that event, Schuette will soon after provide an opportunity to revisit Grutter, with the Sixth Circuit having clearly established that Justice Kennedy's dissent was fully justified. The University of Michigan's racial preferences would then come to an end, some 15 years ahead of schedule by Justice O'Connor's watch.