As I explained in my last column, the United States Court of Appeals for the Sixth Circuit has handed down some monster rulings in recent weeks. In the space below, I discuss and analyze Coalition to Defend Affirmative Action v. Regents of the University of Michigan, in which the court, by a 2-1 vote, invalidated Proposal 2, a voter-initiated amendment to the Michigan Constitution.
Proposal 2, enacted in November 2006, was likely prompted by the Supreme Court’s 2003 ruling in Grutter v. Bollinger. In that decision, the Court, by a 5-4 vote, held that although a state’s use of race to classify individuals is “suspect” and triggers “strict judicial scrutiny” under the Equal Protection Clause of the Fourteenth Amendment, a narrowly tailored plan in which the race of applicants is considered alongside numerous other factors in order to admit a critical mass of minority students is a permissible way to accomplish the compelling government interest of ensuring a diverse law school student body.
Proposal 2 responded to Grutter by completely forbidding Michigan’s public colleges and universities from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.” Proposal 2 thus attempted to close, as a matter of state law, the small window of federally permissible race-based affirmative action identified in Grutter. By invalidating Proposal 2, the Sixth Circuit’s ruling reopened that window, at least for the moment.
It likely comes as a surprise to many observers that although race-based affirmative action programs are not required by the Constitution—and indeed are, as noted above, deemed suspect under it—there might still be unconstitutional ways to eliminate them. The theory along these lines that was embraced by the Sixth Circuit is based on some Supreme Court cases that were decided a generation or more ago, and requires a bit of background to appreciate.
Conventional Equal Protection Analysis and Its Application to Proposal 2
Under conventional equal protection principles, a state law or policy is subject to strict scrutiny if, on its face, it classifies persons on the basis of race. Proposal 2 does not embody a racial classification in this conventional sense, because it neither singles out any particular race for differential treatment, nor makes a person’s race relevant to the receipt of any benefit or the imposition of any burden. (To the contrary, Proposal 2 purports to make one’s race completely irrelevant to the receipt of certain public benefits.)
Even a facially neutral law is constitutionally flawed, however, if the purpose or motive behind the law’s enactment is to disadvantage persons of particular races. But a successful challenge in this regard requires a demonstration that the relevant lawmakers—in the case of Proposal 2, the voters of the state—pursued a particular course of action “because of,” and not “merely in spite of,” its adverse effects upon a racial group.
Such a showing of invidious motive behind Proposal 2 would be hard to establish, because many non-racist people believe that race-based affirmative action is inherently unfair and/or inefficient, and such voters may support a ban on affirmative action for these reasons.
The Unconventional Hunter-Seattle Analysis, Beginning with the Hunter Case
That brings us to the somewhat esoteric Supreme Court cases and doctrine on which the Sixth Circuit relied. The two key cases are Hunter v. Erickson and Washington v. Seattle School District Number 1.
In Hunter, the people of Akron, Ohio—responding to a fair-housing ordinance (i.e., an ordinance that prohibited racial discrimination in housing) that had been enacted by the City Council—amended the city charter to prevent the implementation of any fair-housing ordinance that had failed to gain the express approval of a majority of Akron voters. The amended charter defined the ordinances that were to be subject to the newly created popular approval requirement as those laws regulating real estate transactions “on the basis of race, color, religion, national origin or ancestry . . . .” The charter amendment, the Court pointed out, “not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required approval of the electors before any future [housing discrimination] ordinance could take effect.”
By an 8-1 margin, the Justices struck down the charter amendment as a violation of equal protection. The Court declined to rest its decision on a finding of invidious intent on the part of voters. Instead, the Court nullified the law because it effectively drew a “racial classification [which] treat[ed] racial housing matters differently [and less favorably]” than other matters.
The Court found it crucial that the law, while neutral on its face in the sense that it drew no distinctions among racial and religious groups, would nonetheless uniquely disadvantage the beneficiaries of antidiscrimination laws—racial minorities—by forcing such laws to run a legislative gauntlet of popular approval that other laws, and thus other interest groups, were spared.
The Hunter Doctrine Is Extended in the Seattle Case
In Seattle School District No. 1, the Court applied and extended Hunter.
In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used pupil reassignment and busing to eliminate one-race schools.
The Seattle program prompted the people of Washington to enact Initiative 350. On its face, the statewide initiative provided broadly that “no school board . . . shall directly or indirectly require any student to attend a school other than [the geographically closest school].” The initiative, however, then set out so many exceptions to this prohibition that the effect on local school boards was to bar them from ordering reassignment or busing for the purpose of racial integration, but to permit them to order reassignment or busing for all other educationally valid reasons.
By a 5-4 vote, the Court struck down the plebiscite. As in Hunter, the Court declined to rest its holding on a finding of invidious intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because it singled out racial busing—a program of particular importance to racial minorities—and moved it from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court held, denied such minorities the equal protection right to “full participation in the political life of the community.”
In both of these cases, the Supreme Court applied (with varying degrees of clarity) a two-pronged test: First, a challenger must show that the law in question is “racial” or “race-based” in “character,” in that it singles out for special treatment issues that are particularly associated with minority interests. Second, the challenger must show that the law imposes an unfair political process burden with regard to these “minority issues” by entrenching their unfavorable resolution.
Strict scrutiny is triggered only if the challenger satisfies both parts of the test. A law that imposes special political process burdens on classes not defined by race does not directly implicate the cases. Similarly, a law that deals explicitly with “racial” issues but does not impose any entrenching political process burdens is also unproblematic.
The Sixth Circuit’s Application of the Hunter-Seattle Doctrine and Why the Application Is Contentious
Utilizing this two-part test, the Sixth Circuit concluded that Proposal 2 was constitutionally flawed. First, the measure was racial in character in that it dealt specially with an issue—race-based affirmative action—that is of distinctive interest and benefit to racial minorities. Indeed, the racial busing programs in the Seattle case were just one type of “voluntary” race-based affirmative action; if elimination of those programs affected minorities especially, then elimination of the broader category of which they were a part would seem to do so, as well.
Moving to the second part of the test, the Sixth Circuit held that Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government—the state constitution—where minorities are less likely to succeed than they are at lower levels, such as local government or university administration. Although Michigan is free to repeal affirmative action programs, the Sixth Circuit suggested, it cannot repeal such programs at a level higher than the one at which they were initially adopted, just as the state of Washington could not repeal racial busing at the statewide level, rather than the local level.
While the Sixth Circuit’s reasoning is careful and its result is defensible under current law, the ruling is sure to be controversial. The main reason for controversy lies in the Hunter and Seattle cases themselves. At one level, the central idea behind this line of cases is relatively straightforward: Just as minorities cannot be singled out for substantively inferior treatment (say, subjected to a unique sales tax), neither can they be singled out and relegated to inferior treatment in the political process (say, subjected to a race-based poll tax.)
Consider the following (and extreme) hypothetical: A state constitutional provision that requires a 90 percent legislative supermajority vote for any “law that benefits persons of color.” Such a provision would be obviously problematic because its text explicitly defines the provision’s scope in terms of minority interests, and because the high supermajority requirement obviously imposes a substantial burden.
The Hunter line of cases is contentious in large part because the cases do not concern laws whose very scope is explicitly defined in terms of minority interests. The laws in question did not expressly single out minorities at all, but instead singled out issues that the Court deemed to be of particular interest to minorities. The equal protection vice found by the Court in these cases is thus more subtle than the equal protection flaw plaguing the hypothetical I described in the preceding paragraph.
It might be tempting to think that Hunter and Seattle were cases in which the Justices smelled a rat—evil racist motive by the voters—but were too genteel to say so explicitly. But the problem with that reading is that the Court explicitly eschewed any reliance on impermissible voter motive; for a lower court to ignore those statements by the Justices would be adventurous at the least.
Some might try to invoke a procedure-substance distinction in an effort to separate Proposal 2 from the initiatives found wanting in Hunter and Seattle. In both of those cases, the Court’s language repeatedly characterized the initiatives at issue as having “restructured” the pre-existing political process to impose burdens on minorities. This repeated emphasis might incline one to think the Hunter-Seattle doctrine prohibits states from enacting initiatives that on their face directly restructure the pre-existing political process in a manner that is racial in character, but does not similarly prohibit states from enacting initiatives that on their face merely “work a simple change in policy,” even if they incidentally entrench the new policy.
The problem with this reading is that Justice Powell made this argument in dissent in the Seattle case, and the majority rejected it, noting that “[i]ndeed, . . . Hunter would not have come out the other way had the charter amendment [been worded “substantively” rather than “procedurally” by] ma[king] no provision for the passage of fair housing legislation [at all], instead of subjecting such legislation to ratification by referendum.”
The Conundrum: The Possibility of Anachronistic Doctrine
The biggest criticism of reliance on the Hunter-Seattle doctrine may be that such cases do not appear to reflect current thinking at the high Court. Over the past twenty years, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs by emphasizing (among other things) certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others).
According to the Court, such programs threaten to embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.” Proposal 2, its supporters would thus contend, does not frustrate valued minority interests. Rather, the Initiative simply moves Michigan law into line with the Supreme Court’s current disparaging attitude toward affirmative action programs.
Indeed, one might well wonder whether the Supreme Court would embrace the context-sensitive Hunter-Seattle doctrine if Hunter or Seattle were to arise for the first time today. In a recent series of cases involving government contracting (e.g., Adarand Constructors, Inc. v. Pena) and electoral districting (e.g., Shaw v. Reno), the Court has held that all racial classifications must satisfy strict scrutiny—“whether or not the reason for the racial classification is benign or the purpose remedial.”
These cases reflect an equal protection doctrine that embraces formally symmetrical rules governing members of all races, and the cases seemingly downplay the significance of traditional contextual concerns such as the political power or historical oppression of the burdened group.
The “feel” of these recent decisions thus diverges from the more nuanced and asymmetrical “feel” of Hunter and Seattle. It is for that reason that I have elsewhere written that Hunter and Seattle may not “make sense in today’s world.”
Another way of making the point is to observe that Grutter (the 2003 Michigan law school case) is the exceptional result over the last two decades; most of the time it has visited these issues, the Court has invalidated racial affirmative action, or at least urged lower courts to do so, rather than embraced it.
If voluntary race-based affirmative action programs are rarely, and even then only barely, constitutionally permissible, then one may ask: How can it be wrong for a state to choose not to make use of them, and to embody that decision in a state’s fundamental charter—its constitution?
This argument is superficially appealing. Nevertheless, I think the Sixth Circuit’s careful reading and application of Hunter and Seattle is quite credible. The key reason is that lower courts are generally obligated to interpret and apply existing Supreme Court precedents faithfully, having little discretion to determine that old precedent has lost its binding force.
Indeed, the Supreme Court itself has expressly cautioned that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (Judge Frank Easterbrook, a famous conservative jurist, recently invoked these limits on lower courts when he declined to disregard old Supreme Court cases concerning the applicability of the Second Amendment to the states before the Supreme Court formally overruled them, even though most analysts doubted the continuing vitality of the old cases.) And nothing in the recent Supreme Court cases concerning explicit racial classifications is directly incompatible with the articulated Hunter framework. Thus, lower courts remain obligated to administer this framework fully and fairly when assessing Proposal 2.
What May Happen Next in This Significant Case?
Where might things go from here? One possibility is that the Sixth Circuit will rehear the case as a whole (en banc). I’m not sure how the entire Sixth Circuit could avoid the force of Hunter-Seattle any more easily than could the three-judge panel, but the whole court may want to try.
Another possibility is that the Supreme Court will now clean up the seeming tension between the Hunter-Seattle line of cases and its more recent analyses of race-based affirmative action. The Sixth Circuit acknowledged that its result is in some conflict with the Ninth Circuit’s rejection of the Hunter-Seattle argument in a case challenging California’s ban on affirmative action, Proposition 209. And while there may be some arguments that Proposition 209 can be distinguished from Proposal 2, the Justices may now feel there is a sufficiently sharp split in lower court interpretation to warrant the Court’s review. We’ll all know more in the next few months.