July 11, 2011
Earlier this month, the Sixth Circuit Court of Appeals panel struck down Michigan’s ban on the consideration of race and gender in college admissions, but not for reasons you might expect. The decision was not based on the value of diversity in the classroom, the nature of discrimination, or even the disadvantages faced by minorities in education and the workplace. Instead, the Court found the ban unconstitutional because of the way it was created – by a Michigan voter approved constitutional amendment. Because the ban could only be lifted by another constitutional amendment, the Court found that it effectively eliminated (or severely restricted) the ability of minorities to make further objection through an administrative or legislative process.
The decision (2011 WL 2600665), Coalition to Defend Affirmative Action v. Regents of the University of Michigan, is significant because it places minorities on equal footing with the majority in an affirmative action debate in Michigan that has been closely watched for over a decade. But there is another reason the decision is important: it signals a renewed willingness of courts – indeed, conservative leaning courts at the very highest levels – to reject as unconstitutional efforts by state electorates to limit minority participation by constitutional fiat.
Referenda like Michigan’s date back to the 1960s when white majorities attempted to prevent African-Americans from passing anti-discrimination laws and ordinances. In Hunter v. Erickson, 393 U.S. 385 (1969), the Supreme Court struck down an amendment to the Akron, Ohio city charter which required that all ordinances regulating real estate transactions “on the basis of race and religion” be approved by referendum. Similarly, in Washington v. Seattle School District, 458 U.S. 457 (1982), the Supreme Court found invalid a Washington state ballot measure that effectively allowed for busing for any reason other than to promote racial integration. In those cases, the Supreme Court found that the laws in question “placed special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.”
In Romer v. Evans, 517 U.S. 620 (1993), the Supreme Court struck down Colorado’s “Amendment 2” which prohibited the state from passing or enforcing any law that would entitle gay and lesbians to “have or claim any minority status, quota preferences, protected status, or claim of discrimination.” The Court found that the amendment withdrew from homosexuals, but not others, legal protection for injuries caused by discrimination and prevented reinstatement of protections. While recognizing that the amendment could itself be repealed by the voters as some point in the future, the Court concluded that it was too great a burden to impose on only one group (homosexuals), since no other group would have to amend the constitution or repeal a portion of it in order to create change.*
Notwithstanding these Supreme Court precedents, voters continue to pass referenda directed at minority interests at an alarming rate. Arizona, California, Nebraska, and Washington all have affirmative action bans similar to the one Michigan voters passed. In the past decade, over twenty-five states including California, Hawaii, Alaska, Nevada, and Nebraska have all passed referenda limiting the marriage rights of same sex couples, although the California ban, Proposition 8, was recently found to be an unconstitutional on due process and equal protection grounds. Minnesota voters will vote on an amendment to prevent same sex marriage next year.
I suppose that for opponents of affirmative action and gay marriage, constitutional amendments serve to insure what they believe is a degree of democratic oversight — voters preventing “rouge” courts from imposing their own policy viewpoints on the will of the people. But for affirmative action and gay marriage advocates, these amendments serve to confine minorities to a kind of perpetual second-class status leaving them with no realistic avenue to address future injuries caused by discrimination. Without equal political access, the interests of minorities are necessarily compromised.
A good example is, Vermont, New Hampshire, Maine, the District of Columbia, and now New York which have each passed statutes legalizing same-sex marriage, although Maine’s’ statute was overturned through referendum. Had constitutions been altered in those states, elected officials would never have been allowed to debate the merits of same sex marriage bills let alone bring them to a vote. Likewise, racial and ethnic focused referenda serve to silence those interested in preserving diversity in classrooms and in the workplace. Consider what happened in Michigan:
In 2003, the Supreme Court decided in Grutter v. Bollinger (539 U.S. 306) that while the University of Michigan could not set racial quotas for certain racial groups, it could still consider race and ethnicity as a “plus factor” when making individualized decisions. Not satisfied with that result, a group mobilized to place on Michigan’s ballot a proposal to amend the Michigan Constitution “to prohibit all sex and race–based preferences in public education, public employment, and public contracting.” Michigan voters eventually passed that proposal by a narrow margin in November of 2006, but (to point out the obvious) they did so with an overwhelmingly white electorate majority. Further, an exit poll showed that 70% of non-white men and 82% of non-white women voted against the amendment. Appellant briefing (Brief of Appellant, 2009 WL 1439511)
The next month, Michigan institutions were forced to alter long-standing affirmative action programs by eliminating any and all considerations for race. Appellants offered a record (Brief of Appellants, 2009 WL 1439511) showing that as a direct result of the amendment, minority populations in Michigan colleges and universities decreased significantly. Expert testimony (Appellate Brief, 2009 WL 1456909) indicated that it would be “impossible” to “achieve the same sort of racial or ethnic diversity” or “even enroll a critical mass of underrepresented minorities” without considering race. Worse, because decision-makers could no longer consider race, gender, or ethnic based arguments, minorities were left without a voice altogether.
Drawing from Hunter and Seattle, the Sixth Circuit’s decision in Regents has leveled the playing field in Michigan. As the majority pointed out, while a Michigan citizen seeking to change a school policy on an issue unrelated to race might lobby the admission committee, petition the dean or a school board, or launch a campaign in the state legislature, those interested in effecting change to race-based policies were left with no alternative but to amend the Michigan Constitution, an enormous task requiring resources not typically available to minority groups. According to the Court, this narrowing of reasonable alternatives, “removed the authority to institute racially-focused policies and … and lodged it at the most remote level of Michigan’s government, the state Constitution.” The result: a violation of the right of minorities in Michigan to equal protection of the law through an impermissible “rigged” game designed “to reproduce its success indefinitely.”
The Michigan Attorney General has vowed to appeal the decision and and commentators agree that the outcome is unclear. A similar case seeking to overturn California’s ban is currently pending in the 9th Circuit (Case No. 11-15100). It is likely that the issue will reach the Supreme Court.
In the meantime, the message from Supreme Court precedent and now from the Sixth Circuit is clear: when minorities are deprived equal access, via constitutional amendments, to governmental and political processes available to others, the Equal Protection Clause is violated.
* Since Romer, however, other constitutional amendments effecting minority access have been upheld by lower courts. In Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), for example, the Ninth Circuit refused to apply a ‘political structure’ equal protection analysis because, it reasoned, “group (women and minorities) alleged to face special political burdens itself constituted a majority of the electorate.” In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), the Eighth Circuit refused to find a political access problem with Nebraska’s gay marriage ban because they ruled that homosexuals are not a suspect class and, under a rational basis standard, laws defining marriage between a man and a woman are “presumptively” valid.