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Reason Foundation Files Supreme Court Amicus Brief In Schuette v. Coalition to Defend Affirmative Action

Supreme Court should grant the petition of the Michigan Attorney General and reverse the decision of the Sixth Circuit

July 24, 2013

Amici believe that the Petitioner’s argument is in keeping with the legal profession’s admirable traditions of restraint and civility. Yet, the decision below is a travesty of justice, and the task of calling it just that must fall to someone. Your ordinarily mild-mannered and forbearing Amici are not noted for a tendency toward hyperbole. When we call something a travesty of justice, as we do here, it is because we view it as exactly that.

In 2006, a strong majority of Michigan voters elected to adopt MCRI. These voters took to heart MCRI’s core provisions concerning the need for state and local governments, including state colleges and universities, to refrain from preferential treatment on the basis of race, sex, color, ethnicity, or national origin.

The Sixth Circuit’s conclusion that a provision that bans race discrimination is unconstitutionally racially discriminatory is profoundly counterintuitive. When the same argument was made with respect to CCRI, California’s then-Attorney General Dan Lungren called it “Alice in Wonder- land.” George Skelton, Making a Case that the People Have Spoken, Los Angeles Times (December 16, 1996). And indeed, it has been rejected twice in California. See Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997); Coral Construction, Inc. v. City of San Francisco, 235 P.3d 947 (Cal. 2010).

But that is only one among many problems with the Sixth Circuit’s decision. For reasons Amici will elaborate upon at greater length below, the principal case upon which majority relies—Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) (“Seattle School District”)—in fact provides, by its own admission, no support at all. See infra at Section IA. In this summary, it is enough to point out that Seattle School District was a 5-to-4 decision and that the one and only thing that all nine members agreed upon was that the argument adopted by the Sixth Circuit should be rejected.

In his dissent, Justice Powell expressed fear that the logic of the majority’s decision could lead to absurd results. Significantly, the absurd result that he envisioned is precisely what the Sixth Circuit has now embraced: [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. Seattle School District, 458 U.S. at 499 n.14 (Powell, J. dissenting, joined by three other Justices).

The majority denied Justice Powell’s assertion and made it clear that their intent was emphatically not to cover laws like MCRI: “These statements evidence a basic misunderstanding of our decision .... It is evident ... that the horribles paraded by the dissent ... are entirely unrelated to this case.” Id. at 480 n.23 (specifically referencing Justice Powell’s note 14, emphasis added).

Note Justice Powell’s hypothetical: It is precisely what happened in this case. The “affirmative action plan” of a “state law school” “came under fire.” When this Court declined to take action in Grutter v. Bollinger, 539 U.S. 306 (2003), a “higher authority”—the people of Michigan—intervened. Note also that the majority rejected Powell’s concerns as a “parade[ ]” 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 from the majority opinion. But the one thing that all Justices agreed on is that it would be absurd to outlaw measures like MCRI.

What should be clear is that neither Seattle School District nor Hunter v. Erickson, 393 U.S. 385, 391 (1969), the case upon which it was based, was intended to apply to laws that forbid race discrimination (as opposed to facilitate race discrimination). See infra at Section IA. Significantly, if the political re-structuring logic employed in those cases were applied to laws that forbid race discrimination, it would likely find them all unconstitutional. See infra at Section IB. The Sixth Circuit’s notion that decisions regarding racial preference must be made at low governmental levels rather than in state constitutions is unsupported by law and insupportable under our legal traditions. See infra at Section IC.

It would be especially unfortunate if the Sixth Circuit’s decision were allowed to stand given the considerable evidence that initiatives like MCRI work to improve the academic performance and graduation rates of minority college students. They also increase the number of minority students who major in science and engineering and who go on to advanced degrees in graduate and professional school. See infra at Section II. This is not just the wishful thinking of theoreticians. All of this happened in California following CCRI’s passage. The Sixth Circuit’s decision has put a cloud over one of the few bright spots in education today. Amici hope the cloud will be lifted as swiftly and unequivocally as possible.


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