Schuette v. Coalition to Defend Affirmative Action (2014) upheld the Michigan voters’ amendment to the state constitution banning racial affirmative action admissions programs at state universities. In order to understand the opinion of the Court in Schuette, we must first review the decisions of the Court in three prior cases.
In Reitman v. Mulkey (1967), the Court struck down a successful California ballot initiative which amended the state constitution to allow the owner of any residential property to refuse to sell or lease the property to a person at the owner’s “absolute discretion.” (This amendment was passed before the Supreme Court held that private acts of racial discrimination in real estate transactions violated the 1866 Civil Rights Act passed under the 13th Amendment. Jones v. Alfred H. Mayer Co. (1968). In the Court’s view, the intent of the California amendment was to overturn several state statutes which prohibited racial discrimination in housing. The amendment was neutral on its face, making no reference to racial or other class-based discrimination. The Court held that the effect of this amendment would be to deny injured parties the protection of the California statutes banning racial discrimination when leasing or buying residential property. [Reitman was also decided before the Court held that disparate impact from facially neutral statutes was not cognizable in the absence of discriminatory intent in Washington v. Davis (1976).] The Court agreed with the state supreme court that the California constitutional amendment violated the Equal Protection clause of the 14th Amendment because it “expressly authorized and constitutionalized the private right to discriminate.”
Two years later, the Court decided Hunter v. Erickson (1969). In 1964, the town council in Akron, Ohio enacted an ordinance to combat the racial discrimination that was prevalent in the private housing market. Shortly thereafter, the people of the city voted to amend the city charter to prevent the city council from enacting any ordinance that dealt with discrimination in housing without the approval of the majority of Akron’s voting population. In striking down the amendment as a violation of Equal Protection, the Court introduced the “political process doctrine.” The Court emphasized the special burden placed on minorities in the political process when antidiscrimination ordinances are singled out and subjected to burdensome requirements. Justice Harlan, concurring, stated that the amendment had the clear purpose of stymying the efforts of racial and religious minorities to gain ordinary access to the political process. He wrote that the amendment to the city charter had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.”
Finally, in Washington v. Seattle School District No. 1 (1982), the people of the state of Washington passed a ballot initiative that created a statewide statute prohibiting school districts from voluntarily initiating busing programs to foster the racial integration of schools. The Seattle city school board, amidst great controversy, had previously implemented this type of busing. This statewide initiative, begun by opponents of the Seattle busing plan, overturned the plan and removed the decision making power regarding a return to voluntary busing from the local school board, where such decisions traditionally lay, and placed it instead in the hands of the state legislature and or state voters. Justice Blackmun, for the Court, wrote that the state initiative had the “practical effect” of removing the authority needed to address this racial issue from the initial decision-making body “in such a way as to burden minority interests” who would now have to navigate the legislature or the state electorate instead of their local school boards. Thus, the provision was found to violate the Equal Protection Clause of the 14th amendment and the state was enjoined from implementing the initiative as law. Justice Harlan’s concurrence in Hunter influenced the Court in Seattle; the Court ruled that if there is a situation in which there is a government action which benefits a minority and which members of that minority perceive to be “in their interest,” any subsequent state action which would place decision-making authority regarding that benefit at a different level of government should then be reviewed at strict scrutiny. Hunter and Seattle together were seen to form an “effects test” (also known as the “political process doctrine”) which seemed to hold that if a state action had the “serious risk” of causing injuries due to race or was likely to be used to encourage infliction of injury by reason of race, the state action must be reviewed at strict scrutiny, regardless of intent.
These cases set the stage for Schuette. This Michigan case arose from developments subsequent to the Court’s 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger concerning affirmative action programs at the University of Michigan. Following Gratz, the college modified its admissions process, but still kept race as a factor. This action sparked a state-wide debate which culminated in 2006 with an amendment to the state constitution which prohibited governmental entities in Michigan from using race as a positive factor in their decisions. In particular, it banned the use of racial affirmative action programs at state universities. The Sixth Circuit Court of Appeals struck down the amendment on the basis that selectively transferring a decision regarding affirmative action from the “local” university board of trustees to the state level directly mirrored the issue presented in Seattle. The court therefore employed strict scrutiny analysis and struck the amendment.
However, in a splintered case, the Supreme Court reversed. Justice Kennedy announced the judgment of the Court in an opinion joined only by Chief Justice Roberts and Justice Alito. The issue in the case, Justice Kennedy asserted, centered not on whether such affirmative action admissions policies are permissible, but whether voters in a state may prohibit such practices and, if they can, in what manner can they proceed to do so. First, he attempted to distinguish the three earlier political process cases. He stated there was no specific harm like that found in Hunter or Reitman, and no history of discriminatory conduct by the University like had occurred by the school system in Seattle. He argued that there was no demonstrated “discrimination,” as affirmative action gives minorities additional assistance; removing a benefit is different from taking away a privilege or right. The absence of affirmative action is not discrimination in and of itself and thus could not be considered a harm. Furthermore, while the Seattle city school system had a history in the 1940’s and 1950’s of discriminatory practices that aided segregation of its schools, the same could not be said about the universities in Michigan. He stated that “[t]here is no authority in the Constitution of the United States or in the Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In both the Hunter and Seattle cases, a main focus was whether the act placed decision-making authority at another level of government than that in which it had previously existed, and did so in such a way as to burden minorities. In Schuette, the decision-making authority was shifted from appointed boards of governors at universities and instead put in the hands of the general public at the state level. Kennedy contended that, unlike the other initiatives in the previous cases, this was a positive shift from a largely appointed form of government (university boards) to a public one (the electorate). This, Kennedy reasoned, seems not to burden minorities, but rather permits them easier access to the political process and state wide changes.
Justice Sotomayor, in a vigorous dissent, disagreed with the plurality opinion and insisted that this case should be decided in line with the political-process doctrine established in Hunter and expounded upon in Seattle. She therefore applied strict scrutiny to the Michigan amendment and found it unconstitutional. She wrote that the United States has a “long and lamentable” record of denying racial minorities equal participation in the political process. Those who were opposed to the affirmative action principles being implemented at their state’s public universities could have lobbied the boards or acted through the electoral process to change the membership of the boards in question, and thus left decision-making power with the state entities in which it was originally vested. In short, she stated that by allowing this initiative, those who previously could appeal to the “local” university board of governors to adopt an affirmative action program for admissions based on race now have to amend the state constitution, while those who ask for preferential treatment based on an alumni-legacy connection or any other grounds may still do so through the board of governors. Sotomayor contended that this constitutes a patented unfairness to racial minorities.
Justice Scalia, joined by Justice Thomas, agreed with Justice Sotomayor that the political process cases should apply if they represented good law, but he would directly overrule them. Consequently, he concurred only in the judgment.
Schuette is significant because it suggests the Court implicitly overturned the “political process doctrine,” by distinguishing the case in such a way that the rule from Hunter and Seattle was effectively inapplicable. The ruling in this case, while not that of a majority of the Court, does indicate a withdrawal from Hunter and Seattle and signals to other states that they, too, may begin the process of eliminating affirmative action efforts initiated by universities through state-wide action.