If you are tired of Court watchers who like to hedge their bets, you might appreciate this:  I predict a reversal here.  It seems unlikely that the Court granted certiorari in order to congratulate the Sixth Circuit on its keen legal insight.   But I can’t help wondering why Supreme Court intervention has been necessary.  How did the Sixth Circuit, sitting en banc, arrive at the counter-intuitive conclusion it did?  And what does it say about our legal culture that the eight-to-seven vote broke down precisely on party lines?

The case concerns the Michigan Civil Rights Initiative (“MCRI”) – a voter initiative passed in 2006 by a wide margin.  Its core provision prohibits the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination.  For that reason, the Sixth Circuit found it unconstitutional.

MCRI was passed in the wake of the Supreme Court’s 2003 decision in Grutter v. Bollinger.  In that case, the Court decided that the Constitution did not forbid the University of Michigan Law School from granting African Americans, Hispanics and American Indians very large admissions preferences.  Michigan voters decided that if the Constitution did not forbid race-preferential admissions, they would.

There is nothing remarkable about that.  The fact that the Constitution does not forbid something does not mean it is required.  The Constitution does not forbid state universities from admitting only students who can carve the federal tax code on the head of a pin.  But voters in direct democracy states can amend the state constitution to impose a more sensible policy.

One of MCRI’s more conspicuous opponents was the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (self-described as “BAMN”) – an organization whose very name bespeaks its extremism.  BAMN is a Detroit-based offshoot of the Revolutionary Workers League, and, to put it mildly, not your average group of earnest, well-behaved diversity advocates.

Just one among dozens of examples of its willingness to use “any means necessary” was its attempt to intimidate the Michigan Board of Canvassers into refusing to certify MCRI for the ballot.  BAMN brought in busloads of protesters who shouted down officials, jumped on chairs, and stomped their feet, flipping over a table in the process.  As the director of elections for the Michigan Secretary of State put it, “Never before have I seen such absolutely incredible and unprofessional behavior from lawyers urging this disruption.”

BAMN’s co-chair and attorney saw things differently:  “We cannot allow our opponents to determine what our tactics should be,” she said.  “Our tactics win.  That’s the bottom line.”  They did not, however, win before the Board of Canvassers.  Board members voted to certify the initiative for the ballot as the law required them to do.  The following November, the voters approved it fifty-eight percent to forty-two percent.

The day after the election BAMN led a group of activists, including numerous locals of the American Federation of State, County and Municipal Employees, into a new theater of action – the federal courts.  It filed a lawsuit that few thought had much of a chance.  Its core argument had already been rejected by both the Ninth Circuit and the California Supreme Court in connection with the California Civil Rights Initiative (on which MCRI was modeled) a decade earlier.  A second lawsuit – filed by a group of students, faculty and prospective students – was later consolidated with the BAMN action.  A motley crew of anti-MCRI litigants are now bound together in a cause that fittingly bears BAMN’s name.

Anyone who argues, as the respondents do, that the Constitution’s Equal Protection Clause forbids voters from prohibiting the state from engaging in discrimination based on race faces an uphill battle.  The “central purpose” of the Equal Protection Clause “‘is the prevention of official conduct discriminating on the basis of race.’”

Here is their argument’s core:  By adopting a policy against race discrimination in the state constitution, Michigan is discriminating against racial minorities who might wish to lobby for preferential treatment.  Other interest groups – for example, veterans, public employees, or fisherman — can lobby for special treatment without restraint.  But a racial group can do so effectively only if it first successfully lobbies to repeal the state constitutional provision.  Such a “political restructuring” is unconstitutional – or so the argument runs.

The argument fundamentally misconstrues the issue.  MCRI doesn’t discriminate against racial minorities.  It discriminates against race discrimination – the way the strict scrutiny doctrine discriminates against race discrimination.

Moreover, all laws work a political restructuring, no matter what level they are promulgated.  Consider the Equal Credit Opportunity Act of 1974.  Under its provisions, it is illegal to discriminate by race in the provision of credit.  When Congress passed that law, it effectively pre-empted the Michigan legislature from passing legislation that might require banks to give minority members credit at preferential rates.  If minority members had wanted such a statute, they would have been required to first lobby to repeal the federal legislation that mandates equality.

That would not have ended the matter.  In turn, if the Michigan legislature had enacted a mandatory one-point preferential rate, it would have pre-empted a state agency from adopting regulations requiring lenders to give under-represented minorities a two-point preference.  Again, repeal would be necessary to secure the greater advantage.  In the end, one would be hard-pressed to come up with a single civil rights enactment that would not work the kind of political restructuring that the Sixth Circuit by a party line vote of eight Democratic appointees to seven Republican appointees held is forbidden.

So what possibly could have led that court to hold MCRI unconstitutional?  There is indeed a history here – two cases in which the Supreme Court appeared to buy an argument that initiatives that work a “political re-structuring” may be unconstitutional.

The more recent was Washington v. Seattle School District No. 1 (1982), a case about a voter initiative that prohibited school districts from assigning a student to a school other than the closest (or next closest) to his home.  The list of exceptions permitted by the initiative conspicuously did not include racial integration.

The Court’s five-to-four decision holding the initiative unconstitutional is not a model of clarity.   But one thing that all nine Court members agreed upon was that the argument adopted in this case should have been rejected.

In his dissent, Justice Powell expressed fear that the majority opinion’s logic could lead to absurd results:

“[I]f the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene unless that higher authority traditionally dictated admissions policies ….  If local employment or benefits are distributed on a racial basis to the benefit of racial minorities, the State apparently may not thereafter ever intervene.  Indeed, under the Court’s theory one must wonder whether – under the equal protection components of the Fifth Amendment – even the Federal Government could assert its superior authority to regulate in these areas.”

The majority denied Powell’s assertion and made it clear their intent was not to cover laws like MCRI:  “The statements evidence a basic misunderstanding of our decision ….  It is evident … that the horribles paraded by the dissent … are entirely unrelated to this case.”

Note Powell’s hypothetical:  It is precisely what happened in this case.  The “affirmative action plan” of a “state law school” “came under fire.”  When the Court declined to take action in Grutter, a “higher authority” – the people of Michigan – intervened.  Note also that the majority rejected Powell’s concerns as a “parad[e]” of “horribles” that were “entirely unrelated to this case.”  No one would claim that the limiting principle behind Seattle School District is easy to discern.  But the one thing that all Justices agreed on is that it would be absurd to outlaw measures like MCRI.

Seattle School District was itself based on Hunter v. Erickson.  But Hunter was the opposite of this case.  It concerned an amendment to the City of Akron’s charter repealing a fair housing ordinance and making re-promulgation difficult.  It thus thwarted Akron’s efforts to discourage racial discrimination by private citizens, thereby lending aid and encouragement to those private discriminators.  Do all eight Democrats on the Sixth Circuit really think that a statute that forbids discrimination is the equivalent?

Alas, Powell’s parade of horribles is alive and well and marching up the Supreme Court’s steps.  It will likely be a disappointing trip for them.  Still, I can’t say I feel good about the exercise.  I keep wondering where the parade will turn up next.

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents inSchuette.  However, the author of this post (like all of the contributors to this online symposium) is not affiliated with the law firm.]

Posted in Schuette v. Coalition to Defend Affirmative Action, Affirmative action symposium, Featured

Recommended Citation: Gail Heriot, Schuette symposium: The parade of horribles lives, SCOTUSblog (Sep. 13, 2013, 3:02 PM), http://www.scotusblog.com/2013/09/schuette-symposium-the-parade-of-horribles-lives/