When the Supreme Court in Schuette v. Coalition to Defend Affirmative Action upheld the Michigan state constitutional ban on race-based affirmative action (known as Proposal 2) a few weeks ago by a 6-2 vote, the overall message that emerged from the decision seemed sensible enough: While the federal Constitution permits states, under certain circumstances, to make limited use of race in allocating government benefits, nothing in the Constitution requires states to do so, and a decision by the people of a state to prohibit all race-based affirmative action preferences is permissible.
The Seattle Line of Cases on Which the Challengers to Proposal 2 Relied, Unsuccessfully
The problem with this straightforward message is that an earlier line of Supreme Court cases, running from the late 1960s until the early 1980s, held that while race-conscious programs may not be required, neither can they be terminated in certain problematic ways. The key decision in this line of authority is the intuitively attractive yet controversial and somewhat confounding 1982 ruling in Washington v. Seattle School District No. 1. 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 race-based pupil reassignment and busing to eliminate one-race schools. The Seattle program prompted the people of Washington to enact Initiative 350, a statewide measure that barred local school districts throughout Washington from reassigning or busing for the purpose of racial integration, but continued to permit local districts to reassign or bus for all other educationally valid reasons.
By a 5-4 vote, the Court struck down the plebiscite. The Court declined to rest its holding on a finding of invidious racist intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because the measure singled out racial busing—a program of particular importance to racial minorities—and moved this issue 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 said, denied such minorities the equal protection right to “full participation in the political life of the community.”
In the Seattle line of cases, the Supreme Court laid out 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. (Mere repeal by the very body that had adopted a policy benefitting minorities would not be problematic.)
The challengers to Proposal 2 in Michigan relied directly on this reasoning. First, they argued, Proposal 2 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. Second, 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. The argument was that although Michigan may be free to repeal affirmative action programs, 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.
How the Justices Dealt With Seattle
In turning away this challenge, Justices Scalia and Thomas acknowledged that the Seattle case controlled, but concluded that it should be overruled. Justices Ginsburg and Sotomayor (who dissented in the Court’s outcome) likewise thought Seattle governed, but they would preserve and apply Seattle, and would have struck down Proposal 2. (Justice Breyer distinguished Seattle on rather technical grounds, and Justice Kagan did not participate.)
In an important opinion that many view as the pivotal one in the case, Justice Kennedy, joined by two other Justices, concluded that the Seattle case may have been correctly decided, but that it did not govern the Proposal 2 matter. According to Justice Kennedy, Initiative 350 in Seattle was bad because it prevented the Seattle School District from dealing with a racial segregation problem to which the government itself had contributed. As Justice Kennedy put the point: “The Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the [local] school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.”
Justice Kennedy disavowed any broader reading of the Seattle ruling, and in particular declined to accept the two-part analytic framework that the Court purported to apply in that case. As Justice Kennedy wrote:
The Seattle Court . . . establish[ed] a new and far-reaching rationale. Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities . . . consider” the policy to be “‘in their interest,’” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. . . . And that reading must be rejected.
As Justice Scalia pointedly observed, Justice Kennedy’s recharacterization of Seattle has serious problems:
[Justice Kennedy’s opinion] reinterprets [Seattle] beyond recognition. . . . As for Seattle, what was really going on, according to [Justice Kennedy], was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. . . . [T]his describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle’s schools suffered at most from de facto segregation, . . . that is, segregation not the “product . . . of state action but of private choices,” having no “constitutional implications.”
(As an aside, I find it somewhat ironic that Justice Scalia criticizes Justice Kennedy’s manipulation of precedent here. Although I agree with him that Justice Kennedy does not adequately engage, but rather hollows out, Seattle, the writing that Justice Kennedy’s opinion reminds me of most is Justice Scalia’s own opinion in Employment Division of Oregon v. Smith, the 1990 religious freedom case in which Justice Scalia guts but does not forthrightly overrule old free exercise cases.)
The Post-Seattle Cases That Eclipsed Seattle’s Essence
So if Justice Kennedy’s (re)reading of Seattle is less than convincing, is there a way to justify his bottom line? For me, the best defense of the outcome in Schuette comes not from creative interpretations of Seattle, but from judicial and societal developments that have emerged after Seattle was decided. As Professor Evan Caminker and I have suggested in academic writings, the argument (whether one finds it convincing or not) would be that elimination of affirmative action programs today does not as clearly disadvantage racial minorities as did the Seattle initiative. Modern affirmative action programs are double-edged—Proposal 2 backers would argue—because such programs inflict stigmatic harm on minorities and impose tangible disadvantages on certain minority groups, even as the programs attempt to confer tangible benefits on some minority groups. This argument challenges, as overly simplistic, the notion that the programs terminated by the Proposal 2 “inure[ ] primarily to the benefit of the minority.”
This argument would build on more recent Supreme Court cases that assuredly support such an ambivalent characterization of affirmative action programs. Over the past two-plus decades, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly “benign” race-conscious programs in part through renewed emphasis on 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, among other things, embrace and “foster harmful and divisive stereotypes,” which might “balkanize us into competing racial factions.”
And this is precisely the basis on which Justice Kennedy declines to apply the Seattle framework. He reminds:
In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.” . . . It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control. . . .
Let me be clear: the suggestion that contemporary affirmative action programs do not primarily benefit racial minorities cannot easily be squared with the holding of Seattle (which is why I think Justice Scalia was correct that either Seattle or Proposal 2 had to be rejected). Initiative 350 eradicated voluntary racial busing—a race-conscious affirmative action program that, in its day, was extremely controversial, as both the majority and dissent in the Seattle case recognized. Racial busing imposed both practical and emotional costs on African American schoolchildren, and it generated interracial divisiveness and even hostility. So modern affirmative action is not easily distinguished from the programs involved in Seattle.
But, again, Seattle’s judicial attitude in this respect has been eclipsed by more recent cases expressing much more skepticism about race-based affirmative action. The Seattle analysis may simply not survive the more recent cases, and if this is true the Court should have said Seattle is no longer good law, rather than manipulate the 1982 ruling in inventive but unpersuasive ways.
An Unlikely Contributor to Seattle’s Demise: Grutter v. Bollinger
No one should be surprised that cases from the last 25 years like Croson (along with Adarand Constructors v. Pena, Parents Involved in Community Schools v. Seattle School District No. 1, among others)—all of which have made it considerably harder for states to engage in affirmative action—are in considerable tension with, and have effectively undermined, Seattle. What is surprising is that the single biggest judicial victory for affirmative action—the 2003 Grutter v. Bollinger case in which a 5-4 Court upheld the University of Michigan Law School’s race-based affirmative action program—also might have (unwittingly) undermined Seattle. Indeed, Seattle’s demise may have been baked into the very cake of Grutter’s analysis.
To see this, we need shift focus from the alleged costs of affirmative action to its benefits. Justice O’Connor’s reasoning upholding the Michigan Law School’s affirmative action policy in Grutter—and the larger diversity justification trend of which Grutter is an example—emphasizes the advantages affirmative action creates for non-minorities, and in so doing erodes the idea that affirmative action is especially beneficial for underrepresented groups. As a pair of law professors observed years before Grutter, diversity is an appealing justification that may “enable an educational affirmative action program to pass constitutional muster because democratic and dialogic educational benefits accrue to all students” (emphasis added). And hear the words of Justice O’Connor in Grutter, defending the Michigan Law School plan without regard to whether it helps minorities in particular:
The benefits [of diversity] are ‘important and laudable, because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ . . . The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. . . . In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” . . . These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle mission to provide national security.” . . . [And] [i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.
It is perfectly understandable that a “win-win” rationale for race-based affirmative action (that emphasizes how such programs benefit everyone) would be attractive, in both legislative and judicial arenas. But if affirmative action is styled in these terms only, then the Court could naturally think that the intended beneficiaries of affirmative action—the entire polity—should be empowered to decide whether they think the benefits outweigh the costs. Proposal 2 and measures like it are no longer as easily viewed as majorities cutting off programs that help minorities, since the elimination of affirmative action (on this view) hurts majorities as well.
Lest I be misunderstood, I should be clear that I do embrace the diversity rationale. But I wish it hadn’t come about as a substitute for—as opposed to a supplement to—a remedial rationale that highlights the distinctive importance of access for certain minority racial groups. In the Croson ruling from a quarter century ago (involving a preference awarded to minority contractors in Richmond), the Court sent the message that the goal of remedying past discrimination was not one on which government should be able to act easily without detailed findings as to exactly what discrimination occurred, when, and by whom. No one denied that there had been overwhelming, pervasive, and persistent societal discrimination against African Americans in Richmond for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: “It is sheer speculation how many minority firms there would be [today] absent past societal discrimination.” This is true, but to deny government officials the ability to redress past discrimination altogether, simply because the enormity of that task creates uncertainty about whether any proposed remedy is perfectly calibrated to the wrong, creates a perverse situation. The greater the past injustices, the more powerless the government is today to deal with their effects, which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.
It is for this reason that the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting, the area where debate remains most lively. Instead, diversity of the student body as a pedagogical asset is (understandably) the primary interest that universities assert (as they did in Grutter) to defend race-based programs. Again, I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious, and compelling reason to maintain race-based programs. And this instinct explains why defenders of affirmative action generally believe that such programs are distinctively helpful to minorities, the very premise of the Seattle ruling that Justice Kennedy thinks cannot be acknowledged by government.