Oral arguments were held on October 17, 2013 and may be viewed at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-682_l537.pdf. In a nutshell, the case is about a Michigan law (Proposal 2) than bans preferential treatment based on race, sex, color, ethnicity, or national origin in public education, employment, or contracting. Proposal 2 was favored by voters 58% to 42%. The district court granted summary judgment deeming Proposal 2 constitutional, but a divided en banc panel of 15 6th Circuit judges overturned and deemed Proposal 2 unconstitutional.
The central issue in this case relates to what is known as the “Hunter/Seattle Doctrine”, based on prior Supreme Court rulings in Hunter v. Erickson (1969) [393 U.S. 385] and Washington et al., v. Seattle School District No. 1 (1983) [356 U.S. 457]. Hunter featured a challenge to a city charter amendment that was challenged on grounds that it nullified the city’s fair housing act and Seattle featured a challenge to Initiative 350 that, effectively, would have ended busing for integration. The Supreme Court overturned both initiatives on grounds that the reallocation of decision-making authority imposed substantial and unique burdens on racial minorities. Although Proposal 2 cites education, employment, and contracting, the crux of the Schuette case relates to education, and more specifically, to the ruling favoring diversity decided by a 5-4 majority of the Supreme Court in Grutter v. Bollinger (2003) [124 S. Ct. 35].
The challenger to Proposal 2 (Coalition to Defend Affirmative Action) argued that the “political process doctrine” established in Hunter and Seattle imposes hurdles to laws that place substantial and unique burdens on racial minorities. The defendants argued that the Hunter and Seattle initiatives were passed because of racial animus, whereas Proposal 2 involved no racial animus and simply requires equal treatment.
Not surprisingly, Justices Roberts, Scalia, and Alito were hostile to the Coalition. Justice Thomas was his usual silent self but undoubtedly, is also in this camp. Also not surprisingly, Justices Sotamayor and Ginsburg were hostile to Proposal 2 and, although Justice Breyer seemed neutral based on his questions, one would assume that he would be with Sotamayor and Ginsburg based on his vote favoring diversity in the Grutter. Justice Kagan will take no part in this case, so Justice Kennedy would have to join the opponents of Proposal 2 to create a 4-4 split that would allow the 6th Circuit ruling to stand, and thereby overthrow Proposal 2.
There are three things I find interesting here. First, basing a ruling on what many feel is an obscure (Hunter/Erickson) doctrine would allow the Supreme Court to leave Grutter untouched regardless of what the ultimate outcome is because diversity separated the notion of racial preference from diversity as a means of providing a better education. The opponents in Grutter did not have racial animus, but rather, a belief that diversity can be better served with race-neutral methods.
Second, race neutrality was one of the arguments used by the proponents of Proposal 2 and, among the arguments used was elimination of alumni preferences, which is presumed to favor non-minorities. Of course the argument in Grutter was that race-neutral methods were tried by the University of Michigan and failed. More interestingly, though, Justice Sotomayor gave a stinging response to the alumni preference arugment, stating:
It's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. It seems that the game posts keeps changing every few years for minorities.
Third, in searching through the various legal blogs, I found it interesting that so many of the scribes believe the opponents are facing an uphill battle in this case. One of the scribes based this notion on Justice Breyer’s seeming neutrality, as well as his vote in Gratz v. Bollinger (2003) [123 S. Ct. 2411] in which he sided with the majority in overturning the University of Michigan’s undergraduate admissions plan. However, his agreement with the Majority in Grutter and dissent to Justice Roberts ruling in Parents Involved in Community Schools v. Seattle School District (2007) [127 S. Ct. 2738] involving plans that would favor minorities in both Seattle and Louisville, Kentucky speak otherwise.
I favor the 4-4 split because it was Justice Kennedy who provided the most difficult questions for defendants, and it was Justice Kennedy who defended diversity as a compelling government interest (in the 14th Amendment strict scrutiny test). Furthermore, although he disagreed that the target plans in those cases were narrowly tailored to the compelling government interest, he outlined methods that could be used that would be narrowly tailored. We’ll see.
by Art Gutman, Ph.D., Professor, Florida Institute of Technology