U.S. Supreme Court discusses Proposal 2

By Taylor Wizner, Daily News Editor
and K.C. Wassman, Daily News Editor
Published October 15, 2013

WASHINGTON, D.C. — Affirmative action in Michigan has once again taken center stage in the U.S. Supreme Court.

The high court heard oral arguments Tuesday for Schuette v. Coalition to Defend Affirmative Action, which questions the legality of a 2006 amendment — commonly known as Proposal 2 — to the Michigan State Constitution that bans race-based preferences in college admission process. The court must weigh whether or not a state ban on race- or sex-based admissions is in violation of the 14th amendment’s equal protection cause. The case brings up questions of unfair burden put upon minority communities, who would have to take to courts to change admission policy instead of that institution’s governing body.

The case came to the U.S. Supreme Court after the state appealed the Sixth Circuit Court’s decision, which struck down equal protection concerns, based on precedent set in Washington v. Seattle School District No. 1. In that 1981 case, the Court found a statewide initiative for a neighborhood-school policy put an unconstitutional burden on racial minorities by reordering the decision-making process.

In order for the court to overturn the Sixth Circuit Court’s ruling, five of the eight participating justices – Justice Elena Kagan having recused herself from this case – would have to rule against the lower court’s decision.

If the justices are split in a 4-4 vote, the ruling is automatically deferred to the lower court’s verdict.

John Bursch, the state’s solicitor general, represented Michigan Attorney General Bill Schuette, who appealed the Sixth Circuit Court’s decision to the court. In his allotted thirty minutes of time, Bursch argued that it is up to each state to determine whether or not they would like race-based admissions.

During his opening statements, Bursch noted it’s unclear whether or not diversity has declined at the University in the wake of Proposal 2. He said the 2010 change in the mandate for reporting race, which allowed students enrolling in a state University to check multiple boxes to denote their race, contrasted with the previous system in which the students were only allowed to select one box. This change, Bursch argued, makes it more difficult to determine diversity.

Bursch argued that it’s the University’s job to find ways to achieve diversity through race-neutral means. Bursch noted that Texas employs a top 10 percent program, in which state-funded schools admit the top students from every school. He said this program, which the University does not employ, has helped increase minority performance at socioeconomically disadvantaged high schools.

He said the Court added scrutiny to the minority admissions by allowing race-based preferences, but limiting the extent to which they can be employed.

“It cannot be unconstitutional for the people to choose not to use (race preferences) anymore, to accept this Court's invitation in Grutter, to move past the discussion about race and into a race-neutral future,” Bursch said.

Grutter refers to Grutter v. Bollinger, a landmark case in 2003 in which the legality of the affirmative action admissions policies of the University’s Law School were upheld.

Justice Sonia Sotomayor was the first justice to speak, centering her questions around the possibility that the amendment intends to segregate schools.

Bursch said this was not an effort to segregate, and it’s a university’s prerogative to achieve diversity with race-neutral practices. He said institutions can do that by eliminating preference for legacy students or focusing more on applicants’ socioeconomic diversity.

“The question is whether the people of Michigan have the choice through the democratic process to accept this Court's invitation in Grutter to try race-neutral means,” Bursch said.

Bursch argued that as the court is in a “post-Seattle world,” in which court decisions involving race should have the goal of improving diversity in the future and not trying to change past behaviors.

“There’s a difference between favoring diversity as an abstract concept on campus, which Grutter clearly allows, and remedying past discrimination, which was the point of the bussing in Seattle,” Bursch said.

After Bursch concluded his initial argument, Mark Rosenbaum, an attorney for the NAACP and American Civil Liberties Union who argued in favor of the plaintiffs, said he did not believe Seattle was an example of absolving discrimination practices but an effort to improve diversity.

Rosenbaum, who is a Law School lecturer, argued that the change in the political process of applying to a university is harder for students who cannot use race to their benefit just like other students may have a difficult time because they didn’t participate in extracurricular activities or hold other qualifications.

Many of the justices, including Chief Justice John Roberts and Justice Anthony Kennedy questioned Rosenbaum about the change in the political process in deciding what qualities preferences should be given to, and how it affects students.

“The political process itself has not become outcome determinative; that the political process itself be a place where we can air these discussions, but not create it in a separate and unequal way to make the — to actually make the decision itself through the process,” Rosenbaum said.

Rosenbaum continued, arguing that putting a racial classification in the constitution makes an ‘ordinary political process’ into an ‘extraordinary political process,’ to which Chief Justice Roberts countered, questioning whether or not race should be a factor first place.

“You could say that the whole point of something like the Equal Protection Clause is to take race off the table,” Roberts said. “Is it unreasonable for the State to say, ‘Look, race is a lightning rod.’ ”

Rosenbaum concluded by noting that race is not entirely off the table under the Equal Protection Clause as shown by the court’s ruling last term on Fisher v. Texas and reiterating that Proposal 2 racially divides the political process of university admissions.

After Rosenbaum exhausted his time, Shanta Driver, national chair of By Any Means Necessary — a coalition that supports affirmative action —, asked the court to uphold the Sixth Circuit Court’s decision and to return the Fourteenth Amendment back to its “original purpose to protect minority rights against a white majority.”

Justice Antonin Scalia immediately questioned Driver’s interpretation of the amendment and asked her to provide an example of a case of the current court that confirms her view that the fourteenth amendment only protects minorities, which Driver could not.

Justice Stephen Breyer also entered the discussion, giving Driver hypothetical situations about employment based on preferences and asking her where the line is drawn in regards to preferential treatment for jobs and admissions.

In response, Driver said she believes the Seattle ruling provides the line and that the court should uphold the precedent set in that case.

Justice Samuel Alito questioned Driver about when exactly the problem with Proposal 2 becomes an issue in the admissions-decision process. After back-and-forth between the two, Sotomayor stepped in to provide her opinion, which Driver said summed up the point she was attempting to make.

“I thought the line was a very simple one, which is if the normal academic decision-making is in the dean, the faculty, at whatever level, as long as the normal right to control is being exercised then that person could change the decision,” Sotomayor said. “It’s when the process has changed specifically and only for race, as a constitutional amendment here was intended to do, that the political doctrine is violated.”

Driver’s final moments in front of the Court centered on whether or not affirmative-action programs are beneficial to a minority group specifically, or to the University as a whole, as ruled in Grutter.

This discussion stemmed from the earlier points made by Bursch about minorities benefiting from Prop 2. Driver combated this in her final moments by saying 90 percent of Black voters in Michigan voted against the proposal and that whether or not affirmative action is beneficial is for a different case, specifically the already resolved Grutter.

The oral arguments concluded with a four-minute rebuttal from Bursch, which emphasized that Seattle is not a direct parallel to this case.

Lawyers involved in the case posit that the deciding vote will likely come from Kennedy, who questioned specific arguments from both sides but said he had trouble distinguishing between the ruling on the Seattle case and the debate over Proposal 2.