When the Akron, Ohio, city council enacted a fair housing ordinance in 1968, opponents drafted and won voter approval of a charter amendment prohibiting adoption of any such law unless approved by a majority of voters. The Supreme Court cried foul. With only one justice dissenting, the court held in Hunter v. Erickson (1969) that the Equal Protection Clause prohibits a change in the political process that imposes “special burdens on racial and religious minorities . . . by making it more difficult for them to secure legislation on their behalf.”
A decade later, voters in Washington state approved a ballot measure, Initiative 350, that effectively prohibited school districts from using busing for purposes of racial integration while allowing it for any of several other educational policies. Again, the court cried foul, this time by a 5-4 vote. For the majority, Justice Harry A. Blackmun wrote in Washington v. Seattle School Dist. No. 1 (1982) that the initiative “creates a constitutionally-suspect racial classification and radically restructures the political process,” amounting to “a major reordering of the state’s educational decisionmaking process.”
Together, the cases establish what is called the political restructuring doctrine, a rule unfamiliar even to many legal experts because so rarely invoked. But the federal appeals court in Cincinnati invoked it last year in striking down a Michigan ballot measure that bars racial preferences in state and local government policies, including admissions at public colleges and universities.
The state has appealed that decision to the Supreme Court, which is set to hear arguments in the case this week [Oct. 15]. Supreme Court handicappers are predicting that the decision in Schuette v. Coalition for Affirmative Action will significantly limit or possibly even overturn a doctrine that, however infrequently used, is viewed by traditional civil rights groups as a logical and necessary part of equal protection law.
Michigan became one of the major battlegrounds in the war over race-conscious admissions policies in the late 1990s. The anti-racial preference group Center for Individual Rights filed separate challenges against admissions policies at the University of Michigan’s flagship undergraduate college in Ann Arbor and the university’s law school. In separate cases, the Supreme Court upheld the limited use of race in the law school’s admissions policies (Grutter v. Bollinger) but ruled out the substantial numerical preferences for minority applicants at the undergraduate college (Gratz v. Bollinger).
Taking its cue from Grutter, the university revamped undergraduate admissions policies to allow the use of race as one among other factors. Opponents responded by qualifying what they entitled the Michigan Civil Rights Initiative for the statewide ballot in November 2006. The measure prohibits discrimination or “preferential treatment” in public employment, government contracts, or public education on the basis of race, sex, color, ethnicity, or national origin. The measure won approval with 58 percent of the vote: two-thirds of white voters voted for it; 90 percent of black voters voted no.
Complex litigation that spanned six years culminated in a fiercely fought, 8-7 decision by the full Sixth U.S. Circuit Court of Appeals in November 2012 striking down the measure. Opponents argued that the measure imposed a political burden on advocates of race-based preferences not imposed on supporters of other admissions preferences, for example for children of wealthy donors or alumni. The measure “undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change,” the majority wrote.
In appealing that decision to the Supreme Court, the state’s attorney general, Bill Schuette, depicts the initiative as an unexceptional guarantee of civil rights. “It is curious to say that a law that bars discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race or sex,” the brief filed by Schuette’s office states.
Mark Rosenbaum, legal director for the American Civil Liberties Union of Southern California and attorney for one set of plaintiffs in the case, calls that depiction of the initiative misleading. The initiative’s prohibition against discrimination is gratuitous, he notes, since it is already illegal for state or local governments to discriminate on the basis of race or the other factors. The effect of the initiative, Rosenbaum stresses, is to prohibit race-conscious admissions policies that would be lawful under Grutter and to set up an effectively insurmountable political obstacle for advocates of such policies.
Rosenbaum emphasizes that the case is not about affirmative action as such, but the opposing briefs by Schuette and by the pro-affirmative action coalition rehash the debate over race-conscious admissions at length and with heat. The conservative majority on the Roberts Court are no great fans of affirmative action, and the five justices are not seen as likely fans of the political restructuring doctrine either. Tellingly, Justice Anthony M. Kennedy did not rely on it in the opinion he wrote in Romer v. Evans (1996) striking down an analogous anti-gay rights initiative in Colorado.
The Michigan measure is a verbatim copy of a California ballot initiative, Proposition 209, adopted in 1996 and upheld by the Ninth U.S. Circuit Court of Appeals. The Supreme Court left that ruling standing. Supporters of race-based admissions policies fear and their opponents hope that a Supreme Court ruling to reinstate the Michigan measure will encourage other states to follow suit in prohibiting racial preferences in university admissions. That could be a decisive turning point in a war that traditional civil rights groups already seem to be losing.