SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION AND THE FAILED ATTEMPT TO SQUARE A CIRCLE David E. Bernstein
∗
Schuette v. Coalition to Defend Affirmative Action arises out of a constitutional challenge to the Michigan Civil Rights Initiative, aka Proposal 2. Proposal 2 was a referendum passed by the voters of Michigan in 2006 by a 58% to 42% margin.1 It amended the Michigan Constitution to ban affirmative action preferences by state entities. The amendment states that government educational institutions shall “not discriminate against, or grant 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.”2 Also, “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin
George Mason University Foundation Professor at George Mason University School of Law. 1 Coal. to Defend Affirmative Action v. Regents of Univ. of Michigan, 701 F.3d 466, 471 (6th Cir. 2012) (en banc). 2 Id. ∗
210
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 211
in the operation of public employment, public education, or public contracting.”3 The amendment was a reaction to the Supreme Court’s decisions on the constitutionality of affirmative action preferences in Grutter v. Bollinger and Gratz v. University of Michigan in 2003.4 These opinions banned state universities from granting automatic bonus points to members of under-represented minority groups (Gratz), but allowed them to take race and ethnicity into account to achieve “diversity” for educational purposes (Grutter). Because Grutter allowed, but did not require, state universities to use racial and ethnic admissions preferences, opponents of such preferences decided to pursue a state constitutional amendment banning them.5 The Coalition to Defend Affirmative Action by Any Means Necessary and other parties then sued, claiming that the MCRI violated the Fourteenth Amendment’s Equal Protection Clause. A district court judge granted summary judgment to the defense,6 but on appeal, a Sixth Circuit panel reversed, holding that the MCRI was unconstitutional because the sections that applied to state universities altered the political process in ways that disfavored members of minority groups.7 The full Sixth Circuit then reconsidered the panel’s opinion en banc, and affirmed it in an 8-7 opinion written by Judge R. Cole, Jr., with all Democratic appointees voting with the majority and all Republican appointees dissenting.8 The Sixth Circuit’s ruling created a circuit split with the Ninth Circuit, which has upheld a very similarly-worded California refer-
Id. BARBARA A. PERRY, THE MICHIGAN AFFIRMATIVE ACTION CASES 166-70 (2007). 5 Id. 6 Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924 (E.D. Mich. 2008). 7 Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 652 F.3d 607 (6th Cir. 2011). 8 Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466 (6th Cir. 2012) (en banc). 3 4
212
New York University Journal of Law & Liberty [Vol. 8:210
endum.9 Not surprisingly, the Supreme Court granted certiorari. The question presented to the Court is, “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.”10 Given that the Supreme Court barely tolerates affirmative action preferences, 11 it is exceedingly unlikely to endorse a lower court ruling that overturns a state ban on them.12 Nevertheless, it is worth examining the Sixth Circuit’s reasoning, because it exemplifies many interesting nuances regarding the debate over the constitutionality of affirmative action preferences, nuances that were mostly ignored in the dissenting opinions. Judge Cole’s opinion demonstrates (1) that despite decades of jurisprudence permitting state university affirmative action preferences only if used for “diversity” purposes, its legal advocates, including federal judges, still act under the assumption that the purpose of preferences is to benefit students who are members of underrepresented minority groups; 13 (2) some affirmative action advocates
9 See Wilson and Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012). 10 See Brief for Petitioner, Schuette v. Coal to Defend Affirmative Action No. 12682, 2013 WL 3245160 (June 24, 2013). 11 See Fisher v. Univ of Texas, 133 S. Ct. 2411 (2013) (reiterating that such preferences are disfavored and subject to strict scrutiny); Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”). 12 E.g., Stuart Benjamin, Litigation Strategy and Coalition to Defend Affirmative Action v. Regents, THE VOLOKH CONSPIRACY (Nov. 15, 2012), http://www.volok h.com/2012/ 11/15/litigation-strategy-and-coalition-to-defend-affirmative-action-vregents/ (“I will bet anyone . . . that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.”); Melissa Hart, Schuette Symposium: Keep it Simple, SCOTUSBLOG (Sept. 16, 2013), http://www.scotusblog.com/? p=169437 (“[T]he Supreme Court is not going to affirm the Sixth Circuit’s decision.”). 13 Perhaps I should mention that I am much more sympathetic to the “social justice” rationales for affirmative action preferences than to the “diversity” rationale, which I find incoherent. But I have no illusion as to which rationale the Supreme Court has endorsed.
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 213
cling to an obsolete model of American politics that posits that African Americans and members of other minority groups lack any substantial political power; (3) some affirmative action advocates tend to discuss the issue as if the only groups affected are African Americans and whites, neglecting both that Asian Americans tend to be harmed by university admissions’ preferences, and that African Americans are a shrinking minority of those eligible for preferences, with Hispanics a significantly larger and faster-growing demographic group; and (4) affirmative action advocates tend to be dismissive of the claim that race is different and more problematic than other criteria that university officials may consider in admissions, for moral, historical, and practical reasons. While not unassailable, these reasons seem to provide a significant non-arbitrary rationale for state voters to ban official reliance on race and ethnicity. Judge Cole begins his Sixth Circuit en banc opinion as follows: A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden un-
214
New York University Journal of Law & Liberty [Vol. 8:210
dermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.14 This is the essence of the opinion, and it is problematic on many levels. Consider Judge Cole’s hypothetical of a “black student seeking the adoption of a constitutionally permissible race-conscious admissions policy,” whom he analogizes to “a student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities.” In other words, the black student wants the university to consider race for self-interested reasons, just as the legacy student does. But, according to Judge Cole, the black student faces a “comparative structural burden,” which makes Proposition 2 unconstitutional. In one sense, it is not surprising that Judge Cole hypothesizes a black student seeking affirmative action to improve his own chances of admission. The implicit primary ideological justification for affirmative action preferences, especially on university campuses, remains not to achieve “diversity” but to redress past and present discrimination against African Americans and other minority groups.15 In another and more legally significant sense, it is very
14 Coal. to Defend Affirmative Action v. Regents of Univ. of Michigan, 701 F.3d 466, 470 (6th Cir. 2012) (en banc). 15 See, e.g., Gabriel J. Chin, Bakke to the Wall: The Crisis of Bakkean Diversity, 4 WM. & MARY BILL RTS. J. 881, 930 (1996) (noting that for many affirmative action advocates, “the diversity fig leaf exists as a pretext” for their true “social justice” concerns); Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 471 (1997) (“Everyone knows that in most cases a true diversity of perspectives and backgrounds is not really being pursued.”); Peter H. Schuck, Affirmative Action: Past, Present, and Future, 20 YALE L. & POL’Y REV. 1, 34 (2002) (“[M]any of affirmative action's more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds.”); Randall Kennedy, Affirmative Reaction: The Courts, the Right and the Race Question, AMERICAN PROSPECT ONLINE, Mar. 1, 2003, available at http://prospect.org/article/affirmative-reaction (arguing that “[m]any who defend affirmative action for the sake of ‘diversity’ are actually
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 215
surprising, because the example neglects the governing test for the constitutionality of affirmative action preferences at state universities. The Supreme Court has held that “outright racial balancing . . . is patently unconstitutional.”16 Any use of race in admissions is subject to strict scrutiny, which could be overcome only if the relevant educational officials have determined that student racial and ethnic diversity “is essential to its educational mission,”17 and even then the university must ensure that “the means chosen by the University to attain diversity are narrowly tailored to that goal.”18 While university officials receive judicial deference in determining that they have a compelling interest in seeking diversity, they receive “no deference” when the courts review their policies to ensure narrow tailoring.19 Two points stand out here. First, affirmative action preferences as pursued by state universities are unconstitutional if they are used for any purpose other than to promote diversity, or perhaps to pursue the “compelling interest of remedying the effects of [a university’s own] past intentional discrimination.”20 They are unconstitutional if used to promote racial balancing, 21 if used to promote “compensatory justice” for past societal wrongs to African Ameri-
motivated by a concern that is considerably more compelling . . . a commitment to social justice”); Orlando Patterson, Affirmative Action: The Sequel, N.Y. TIMES, June 22, 2003, http://www.nytimes.com/2003/06/22/opinion/affirmative-action-the-sequel .html (claiming that few advocates of racial preferences believe in the diversity rationale). 16 Grutter v. Bollinger, 539 U.S. 306, 329-30 (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.)). 17 Id. at 328. 18 Fisher, 133 S. Ct. at 2420. 19 Id. 20 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007); United States v. Paradise, 480 U.S. 149, 166-67 (1987). 21 Grutter, 539 U.S. at 329-30 (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (Powell, J.)).
216
New York University Journal of Law & Liberty [Vol. 8:210
cans or other groups,22 if used to redress current societal discrimination and statistical inequalities,23 if used to provide role models for minority youths,24 if used as a proactive means of avoiding discrimination lawsuits by members of minority groups,25 and, a fortiori, if used to satisfy the desires of constituents who lobby for them out of self-interest. By contrast, legacy preferences could be adopted by a state for any reason, so long as the preferences pass the lenient “rational basis” test.26 Therefore, while after Proposition 2 was enacted, the hypothetical alumnus and the hypothetical black student posited by Judge Cole were not in the same position to lobby for admissions policies benefitting themselves, there is no constitutional reason why a state should make it as easy to lobby for racial preferences as for legacy preferences; discrimination in favor of legacies is not constitutionally disfavored the way racial classifications are.27 Second, because affirmative action preferences are constitutional only when a court finds that university officials have determined that such preferences are “essential to [a university’s] educational mission,”28 from a legal perspective their underlying purpose cannot be to benefit black students or other minority students who receive admissions preferences. Rather, they must benefit all students at the university due to “the educational benefits that flow from a
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986). City of Richmond v. J.A. Croson Co., 488 U.S. 469, 499 (1989). 24 Wygant, 476 U.S. at 276 (1986). 25 Ricci v. DeStefano, 557 U.S. 557, 563 (2009). 26 See Romer v. Evans, 517 U.S. 620, 633 (1996) (noting that in an “ordinary equal protection case” courts apply “the most deferential of standards”). 27 Indeed, while I have been critical of various ways that elite colleges engage in “affirmative action for the well off,” such policies don’t raise any substantial legal problems. David Bernstein, College Admissions and Affirmative Action for the Well-Off, THE VOLOKH CONSPIRACY (Apr. 2, 2013), http://www.volokh.com/2013/04/02/ college-admissions-and-affirmative-action-for-the-well-off/. 28 Grutter v. Bollinger, 539 U.S. 306, 328 (2003). 22 23
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 217
diverse student body.”29 The Supreme Court’s diversity rationale arguably suggests that the main benefit of achieving a critical mass of minority students through affirmative action preferences is that it improves the education of the non-minority students.30 If white students benefit from “diversity”-based preferences at least as much as minority students,31 there is no particular group being disadvantaged by Proposition 2’s ban on such preferences. In other words, Proposition 2 can’t be unconstitutional because it makes it more difficult for minority students to lobby for benefits for themselves, given that it would be unconstitutional for the state
Id.at 343. Not surprisingly, the diversity rationale has come under attack from those who advocate affirmative action preferences for “social justice” reasons. E.g., RICHARD T. FORD, RACIAL CULTURE 59-64 (2005); Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622, 1622 (2003); Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis of a Social Experiment Banning Affirmative Action, 85 IND. L.J. 1197, 1245 (2010); Richard Delgado, Affirmative Action as a Majoritarian Device: Or, Do You Really Want to Be a Role Model?, 89 MICH. L. REV. 1222, 1224-25 (1991); Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 953 (2001). Justice O’Connor’s opinion in Grutter hedges a bit, because she also suggests that diversity in law schools is important because “legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.” Grutter, 539 U.S. at 332-33. Ultimately, however, O’Connor does not rest her opinion on this benefit but on the fact that the “Law School has determined, based on its experience and expertise, that a ‘critical mass’ of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.” Id. at 333. 31 And indeed, some scholars argue that minority students are harmed by such preferences because they are faced with a “mismatch” between their competencies and the educational level at the schools they attend. See RICHARD SANDER & STUART TAYLOR, JR., MISMATCH: HOW AFFIRMATIVE ACTION HURTS STUDENTS IT’S INTENDED TO HELP, AND WHY UNIVERSITIES WON’T ADMIT IT (2012); David E. Bernstein, Affirmative Blackmail, WALL ST. J., Feb. 11, 2006, http://online.wsj.com/article/ SB113962366620071496.html. Affirmative action initiatives tend to focus primarily on how many minority students matriculate, while neglecting whether the matriculating students succeed once admitted. 29 30
218
New York University Journal of Law & Liberty [Vol. 8:210
government to respond to such lobbying by enacting racial preferences. Rather, Proposal 2 represents a public determination that whatever the benefits of student diversity to all students, the majority of the population thinks those benefits are outweighed by harms accrued from allowing the government to discriminate based on race. The hypothetical black student has no more standing to object to that determination than the white student who thinks he would benefit from having more “diverse” classmates.32 The “diversity” rationale for affirmative action preferences also distinguishes the facts of Schuette from the two cases relied upon by Judge Cole to support the notion that Proposition 2 unconstitutionally denies African Americans equal access to the tools of political change, Hunter v. Erickson33 and Washington v. Seattle School District No. 1.34 Hunter involved a referendum that repealed Akron, Ohio’s fair housing law and made it very difficult to pass a new one, and Seattle School District involved a referendum that in effect eliminated reassignments of students away from their neighborhood schools when done to try to achieve school integration. In both cases, as the Supreme Court held, the preexisting policy was meant to redress societal discrimination and “inure[d] primarily to the benefit of the minority.”35 By contrast, state university affirmative action preferences are illegal under Supreme Court precedent if undertaken to redress societal discrimination.
32 As Richard Epstein points out, it’s also the case that organized interest groups can still lobby for state policies that would increase minority admissions without using racial preferences. Richard A. Epstein, Schuette v. Coalition to Defend Affirmative Action: The Intellectual Confusion that Surrounds Affirmative Action Today, SCOTUSBLOG, (Sept. 9, 2013), http://www.scotusblog.com/?p=169179. 33 393 U.S. 385 (1969). 34 458 U.S. 457, 486-87 (1982). 35 Coal. to Defend Affirmative Action v. Regents of University of Michigan, 701 F.3d at 476-77; cf. id. at 510 (Sutton, J., dissenting) (noting that the laws at issue in Hunter and Seattle School District “in both cases were designed to disadvantage one minority group—African-Americans—and no other”).
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 219
A further problem with Judge Cole’s opening paragraph is that its “structural disadvantage” reasoning logically applies to a white student who wants to improve his chances of admission to a state university by lobbying for a state constitutional amendment banning affirmative action preferences. Such an amendment is unconstitutional under the Sixth Circuit’s opinion. The white student is therefore at a structural disadvantage compared to a black student who wants to lobby for a state constitutional amendment requiring such preferences, or, for that matter, banning legacy preferences; unlike an amendment banning affirmative action preferences, neither of these amendments would be barred by the opinion. Judge Cole would respond that the Fourteenth Amendment only protects minority groups’ access to the political process. He writes later in the opinion that ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of ‘discrete and insular minorities,’ who face unique additional hurdles. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The focus on discrete and insular minorities made sense in 1938, when African Americans were largely disenfranchised throughout the United States and were considered by a large percentage of Americans to be less than full citizens.36 These were the “unique disadvantages” African Americans faced in 1938—they were far less than fully represented in the American political process. It makes much less sense in 2013, when blacks are fully enfranchised and protected by a host of civil rights laws including the
36 To take another example, Asian residents of the United States who were not born in the United States were ineligible for citizenship, and therefore could not defend their interests in the political process.
220
New York University Journal of Law & Liberty [Vol. 8:210
Voting Rights Act, there is an African American president, and, as discussed below, African Americans are in any event a decreasing minority of those eligible for affirmative action preferences. Modern public choice theory teaches us that so long as they are able to participate fully in the political process, “discrete and insular minorities” have a massive political advantage compared to a dispersed and disorganized majority, especially when it comes to issues of particular interest to the minority.37 Of course, additional factors come into play in various situations, but there is no a priori reason to assume in the contemporary United States that members of a racial minority are disadvantaged in the political process with regard to any particular issue. Indeed, the very persistence of racial and ethnic preferences in the face of strong overall public disapproval, but much greater support from African Americans and Hispanics,38 could be seen as contrary evidence, at least in that especially relevant context. Moreover, Judge Cole, by positing a hypothetical black student, assumes a black-white paradigm. Public debate over affirmative action also revolves almost entirely around the issue of preferences for African Americans, ignoring the way affirmative action has complicated effects on different minorities.39 This is a remnant of
37 See Bruce A. Ackerman, Beyond Carolene Products 98 HARV. L. REV. 713 (1985); cf. Michael Smith, Symposium: Schuette Tests Limits on Public Control of Public-University Admissions, SCOTUSBLOG, (Sept. 10, 2013), http://www.scotusblog.com/?p=169205 (suggesting that Michigan’s continued efforts to defend affirmative action preferences despite majority disapproval is an example of “interest-group capture of statelevel governmental units”). 38 See, e.g., Public Backs Affirmative Action But Not Minority Preferences, PEW RESEARCH June 2, 2009, available at http://www.pewresearch.org/2009/ 06/02/public-backs-affirmative-action-but-not-minority-preferences/ (reporting that “majorities of both African Americans (58%) and Hispanics (53%) favor preferential treatment to improve the position of blacks and other minorities; just 22% of whites agree”). 39 See David Bernstein, The Novelty of Fisher v. Texas, THE VOLOKH CONSPIRACY, http://www.volokh.com/2012/10/09/the-novelty-of-fisher-v-texas/, (Oct. 9, 2012). For a recent example directly relevant to the topic of this article, Professor Girardeau
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 221
the fact that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteract generalized discrimination against them, ensure the existence of African-American role models, and the like.40 The black-white paradigm may have made sense when affirmative action preferences were first becoming established around 1970, when the Census Bureau recorded that there were approximately twice as many African Americans in the United States as members of all other “official” minority groups combined. 41 It makes little sense today, when African Americans are a shrinking minority of those eligible for affirmative action preferences. Hispanics in the United States outnumber African Americans by approximately fifty million to thirty-eight million; there are approximately fifteen million Americans of Asian descent; and another three million people identify themselves as Native Americans or members of other aboriginal groups.42 Within a generation or two, as Asian Americans, Hispanic Americans, and Native Americans intermarry with whites at a rate
Spann, commenting on Schuette, suggests that “there is no reason to tolerate a ban on constitutional affirmative action programs unless one thinks that racial minorities can make up for the multi-century head start obtained by whites without requiring whites to slow down enough to let minorities catch up.” Girardeau Spann, Racial Supremacy, SCOTUSBLOG (Sept. 11, 2013), http://www.scotusblog.com/?p=169236. By “racial minorities,” Prof. Spann must mean African Americans and perhaps Native Americans; most Hispanics, the largest group of affirmative action beneficiaries, are post-1965 immigrants and their descendants therefore cannot be at a multicentury disadvantage relative to white Americans. Meanwhile, as a group, Asian Americans, who are also mostly post-1965 immigrants and their descendants, have socio-economic indicators similar to whites and were not eligible for the Michigan state universities’ affirmative action programs that led to Proposition 2. 40 See TERRY H. ANDERSON, THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION ch. 1 (2004). 41 Historical Racial and Ethnic Demographics of the United States, WIKIPEDIA, http://en.wikipedia.org/wiki/Historical_racial_and_ethnic_demographics_of_the_ United_States (last modified Oct. 11, 2013, 1:48 PM). 42 Id.
222
New York University Journal of Law & Liberty [Vol. 8:210
far higher than African Americans do, the descendants of these intermarried couples will be free to claim Asian, Hispanic, or Native American identity for affirmative action purposes.43 Between that and the likelihood of continued net immigration from Asia and Latin America, African Americans will become an even smaller percentage of those eligible for affirmative action preferences.44 It therefore no longer makes sense to view affirmative action through a black-white lens.45 Indeed, it no longer makes sense to view affirmative action through a racial lens, given that “Hispanic” is an ethnic or linguistic identity, not a racial one, and one not even embraced by most “Hispanics.” According to a recent Pew Foundation study, fifty-one percent of Americans of Spanish-speaking heritage identify themselves by their family’s country of origin, while just twenty-four percent use a pan-ethnic identity such as Hispanic or Latino.46 Asian Americans, meanwhile, present an additional complication for Judge Cole. On the one hand, they seem to qualify as a “discrete and insular minority” which, according to the Sixth Circuit, needs judicial intervention to ensure that they face a level po-
43 With few exceptions (including certain programs that rely on tribal affiliations), whether one is a member of a recognized minority group for affirmative action purposes is a matter of self-identification. 44 It should also be noted that university administrations lump all persons of African descent into one category, leading to increasing complaints that descendants of American slaves are significantly underrepresented at elite American universities compared to children of African or West Indian immigrants, and also children of white-black intermarriage. See, e.g., Ken Brown & Jeannine Bell, Demise of the Talented Tenth: Affirmative Action and the Increasing Underrepresentation of Ascendant Blacks at Selective Higher Educational Institutions, 69 OHIO ST. L.J. 1229 (2008). 45 See SANDER & TAYLOR, supra note 31, at 12 (noting that “increasingly, racial preferences are used to benefit Hispanics, biracial Americans, and foreign black nationals and to disadvantage Asian Americans”). 46 Paul Taylor, et al., When Labels Don’t Fit: Hispanics and Their Views of Identity, PEWRESEARCH HISPANIC CENTER TRENDS PROJECT, April 4, 2012, available at http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit-hispanics-andtheir-views-of-identity/.
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 223
litical playing field. On the other hand, it is widely believed47 and backed by empirical evidence48 that affirmative action preferences in university admissions typically operate to the detriment of applicants of Asian descent because they are “overrepresented” at selective universities that use preferences to encourage “diversity.” Certainly, in the University of Michigan litigation, neither the undergraduate nor law school admissions offices counted Asian Americans as members of a minority group entitled to admissions preferences. In the recent Fisher v. University of Texas litigation, the University of Texas officials deemed Asian Americans to be “overrepresented” at UT compared to their percentage of the state population,49 and Asian Americans were likely the primary victims of preferences for blacks and Hispanics.50
47 Rich Lowry, Hiding their Race: Asians' New College Fear, N.Y. POST (Dec. 16, 2011, 5:00AM), http://www.nypost.com/p/news/opinion/opedcolumnists/hiding_thei r_race_ sKvjDf84vh22J21Ri7DDNK; Some Asians' College Strategy: Don't check ‘Asian’ USA TODAY, (Dec. 3, 2011), http://www.usatoday.com/news/education/story/ 2011-12-03/asian-students-college-applications/51620236/1. 48 Thomas J. Espenshade & Alexandria Walton Radford, Evaluative Judgments vs. Bias in College Admissions, FORBES.COM, (Aug. 12 2010, 9:00 AM), http://www.forbes. com/2010/08/01/college-admissions-race-politics-opinions-best-colleges-10espenshade-radford.html; Thomas J. Espenshade & Chang Y. Chung, The Opportunity Cost of Admission Preferences at Elite Universities, 86 SOC. SCI. Q. 293, 293-99 (2005); David R. Colburn et. al., Admissions and Public Higher Education in California, Texas, and Florida: The Post-Affirmative Action Era, 4 INTERACTIONS: UCLA J. EDUC. & INFO. STUD. 4 (2008), available at http://escholarship.org/uc/item/35n755gf; Daniel E. Slotnick, Do Asian-Americans Face Bias in Admissions at Elite Colleges?, N.Y. TIMES THE CHOICE BLOG (Feb. 8, 2012, 1:43 PM), http://thechoice.blogs.nytimes.com/ 2012/02/08/do-asian-americans-face-bias-in-admissions-at-elite-colleges/?_r=0 (citing a study showing that holding other variables equal, Asian American applicants need SAT scores 140 points higher than whites to be admitted to elite colleges). 49 Reply Brief for Petitioner at 9, Fisher v. Univ. of Tex. at Austin, 132 S.Ct. 1536 (2012) (No. 11-345) (quoting Brief for Respondent at 45, Fisher v. Univ. of Tex. At Austin, 132 S. Ct. 1536 (2012) (No. 11-345)). 50 David Bernstein, The Novelty of Fisher v. University, THE VOLOKH CONSPIRACY, (Oct. 9, 2012 10:14), http://www.volokh.com/2012/10/09/the-novelty-of-fisher-vtexas/#disqus_thread.
224
New York University Journal of Law & Liberty [Vol. 8:210
Yet, while a student with no alumni connections can lobby for a state constitutional amendment to ban legacy preferences, under the Sixth Circuit ruling an Asian-American student could not similarly lobby for a ban on racial preferences for “underrepresented minorities” to aid his chances of admission, because such a ban would be unconstitutional. That means, given the Sixth Circuit’s reasoning, that the Asian-American student is illicitly denied “equal access to the tools of political change.”51 Meanwhile, in analogizing racial and ethnic preferences to legacy preferences, Judge Cole failed to consider the argument that race and ethnicity are special. To some, they are special because it is particularly immoral to give someone a preference based on race or ethnicity,52 as opposed to geographic origin, legacy, sports prowess, musical ability, and other factors that universities take into account. Such opponents of affirmative action preferences often allude to moral invocations, such as Martin Luther King’s dream that people be judged “not by the color of their skin, but by the content of their character.”53 The Supreme Court itself has stated that “classifications of citizens solely on the basis of race ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’”54
51 Cf. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. By Any Means Necessary v. Regents of Univ. of Mich., 701 F.3d at 510 (Sutton, J., dissenting) (“A ban on racial preferences likewise may favor some racial groups today and others tomorrow.”). 52 See Daniel A. Farber, Missing the “Play of Intelligence”, 36 WM. & MARY L. REV. 147, 159 (1994) (summarizing the most common argument against affirmative action preferences as follows: “Whether you call them affirmative action or reverse discrimination, racial preferences are wrong. They are morally wrong whichever group is favored.”). 53 Martin Luther King, Jr., The March on Washington Address (Aug. 28, 1963), in GREAT AMERICAN SPEECHES 239, 242 (Gregory R. Suriano ed., 1993). 54 Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943))
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 225
Such moral considerations are often complemented by the insight that racial and ethnic identities are uniquely dangerous attributes on which basis to allow the government, including government-sponsored universities, to make decisions. History, and for that matter current events, are replete with examples of different racial and ethnic groups committing violence to win government favor for their group at the expense of rival groups. Certainly, white Americans, especially but not exclusively in the South, used the government to benefit themselves at the expense of African Americans.55 Whatever positive effects doling out government largesse (including college admissions slots) by race must be weighed against the danger that such policies will encourage people to organize themselves politically by race and ethnicity, such organization would cause the political process to become more responsive to specifically racial and ethnic organization, which in turn would lead to increased societal divisiveness, and could ultimately result in significant social disorder. Put another way, the other sorts of preferences that universities use in determining admission may not be sound policy, but they are not inherently dangerous to society. To my knowledge, there have been no civil wars, riots, or genocides sparked by government seeming to favor athletes, university alumni, musicians, people from remote states, and other groups preferred in university admissions. By contrast, world history and current events are filled with examples of racial and ethnic hostility causing violence, war, and destruction. Indeed, affirmative action itself has sparked violence, especially in India, where ethnic tensions coexist with caste ten-
55 See, e.g., DAVID E. BERNSTEIN, ONLY ONE PLACE OF REDRESS: AFRICAN AMERICANS, LABOR REGULATIONS AND THE COURT FROM RECONSTRUCTION TO THE NEW DEAL (2001); IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE (2006); DESMOND KING, SEPARATE AND UNEQUAL: BLACK AMERICANS AND THE US FEDERAL GOVERNMENT 209-10 (1995).
226
New York University Journal of Law & Liberty [Vol. 8:210
sions.56 As Thomas Sowell points out, “complacency is never in order when racial or ethnic relationships are concerned, for even generations of peaceful coexistence can turn ugly when the right circumstances and the right demagogue come together.”57 Proponents of affirmative action retort that whatever the moral value of imposing a broad color-blindness principle, it is outweighed by the moral necessity of using racial and ethnic preferences to achieve social justice.58 This retort, however, fhiounders on two shoals. First, as noted and whether proponents of affirmative action like it or not, racial and ethnic preferences by the government are unconstitutional if based on “social justice” considerations. Second, the proponents’ argument would at most give the courts a reason to find that the government can enunciate a compelling interest in pursuing affirmative action preferences. It is quite a leap from there to arguing, as the Sixth Circuit did, that the voting public of a particular state cannot disagree with how university and other government officials have drawn the balance, and prohibit the these officials from engaging in affirmative action preferences. In short, Schuette seems like an easy case. It would be inherently difficult for any court to persuasively explain why a state constitutional amendment that forbids a state for discriminating for or against any individual based on their race or ethnicity violates the
56 E.g., Rahul Bedi, Rioters Demand Lower Caste Status in India, THE TELEGRAPH (May 29, 2008, 4:26 PM), http://www.telegraph.co.uk/news/2049567/Riotersdemand-a-lower-caste-status-in-India.html; Barbara Crossette, A Holiday Quiets India After a Week of Rioting, N.Y. TIMES (Sept. 30, 1990), http://www.nytimes.com/1990/ 09/30/world/a-holiday-quiets-india-after-a-week-of-rioting.html; Riots over Indian Tribal Quotas, BBC NEWS (May 29, 2007), http://news.bbc.co.uk/1/hi/67003 21.stm?lsm. 57 THOMAS SOWELL, AFFIRMATIVE ACTION AROUND THE WORLD: AN EMPIRICAL STUDY 93 (2004). 58 E.g., Kim Forde-Mazrui, Taking Conservatives Seriously: A Moral Justification for Affirmative Action and Reparations, 92 CALIF. L. REV. 683 (2004).
2013]
SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION 227
federal constitutional provision guaranteeing all persons “equal protection of the law.”59 It is no surprise that Judge Cole and his Sixth Circuit Colleagues were not up to the task.
59 Cf. Crawford v. Bd. of Educ., 458 U.S. 527, 535 (1982) (“It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”).