The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race. (Except, that is, when the discrimination favors whites over racial minorities.)
The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race.
— Chief Justice John Roberts, Jun. 28, 2007, writing for a four-justice plurality in Parents Involved in Community Schools v. Seattle School District No. 1.
Given that statement of his own belief, and his concomitant pronouncement that discrimination by a state or local government on the basis of race necessarily violates the Fourteenth Amendment’s equal protection clause and that therefore the federal judicial branch is entitled to strike down as unconstitutional any law or policy that discriminates on the basis of race, I expect that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.
Let me explain. Or, better, let me borrow part of the nicely succinct explanation in an editorial in today’s New York Times, which begins:
Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court is facing this week in the case of Schuette v. Coalition to Defend Affirmative Action.
Some background is in order. In 2003 the Supreme Court upheld as constitutional the race-conscious admissions policy at the University of Michigan law school. But at the same time, in a companion case, the court struck down a slightly different affirmative action policy for admissions to the University of Michigan’s first-year undergraduate class, as weighting racial minority status too heavily in order to attain more racial diversity.
In resolving these cases, the court applied its longstanding “strict scrutiny” test to evaluate the equal-protection constitutionality of these affirmative action programs, a test that originated in the 1940s as a constitutional protection under the equal protection clause for members of “suspect,” or “invidious” classifications. Which did not include whites as a racial group, because, well, the purpose of the “strict,” or “heightened,” scrutiny under the equal protection clause was to protect politically powerless, stigmatized, possibly stereotyped, and historically discriminated-against groups. Ordinary, everyday whites were the racial majority, not a minority, and clearly the most politically powerful racial group.
The strict-scrutiny standard, which is the highest level of what is now, at least formally, a three-tiered scrutiny hierarchy, requires that courts strike down laws or government policies that targeted suspect groups for negative consequences because of the invidious and immutable classification, initially concerning a fundamental constitutional right–the right to vote, for example–and then for any law or governmental policy, unless the law or policy serves a “compelling governmental interest”. In which event the means chosen to accomplish the compelling governmental interest must be narrowly tailored so as to have no impact beyond what is minimally necessary.
Originally, the only other level of court scrutiny under the equal protection clause was “rational basis” scrutiny: as long as the government could state some conceivably rational, or legitimate, governmental purpose for the law or policy, the law or policy was fine. “Rational basis” scrutiny, in other words, is another phrase for anything goes. Later, a middle tier was added–intermediate scrutiny–which applies to gender-based discrimination.
So the trick if you are challenging the equal-protection constitutionality of a law or government policy is to squeeze your discriminated-against class into the suspect-classification category. Which is hard to do when your discriminated-against class is the majority, and most politically potent, race. But not so hard that it cannot be done, if you are 1980s-90s era Legal Movement conservatives at a time when 1980s-era Movement conservatives dominate the federal bench overall or at least hold a majority on the Supreme Court. Madison Avenue-ishly marketed as reverse-racial-discrimination programs, race-based affirmative action programs were (and remain) on the Reagan-era-conservatives’ Legal Movement hit list.
So done, it was, initially in a 1986 case called Wygand v. Jackson, in which the court struck down as violating the equal protection clause a school board’s consideration of race in determining financially-necessitated teacher layoffs, holding that racial and national-origin diversity in the makeup of the teaching staff was not a compelling enough governmental interest to survive under the strict-scrutiny test, nor, the Powell opinion says, does the level of scrutiny “change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.”
Nor, the court’s majority held in 1995, in a case called Adarand Constructors v. Pena, does the extent of the political power of the discriminated-against group change the level of scrutiny. The white owners of Adarand Constructors, Inc., challenged an affirmative action program for federal contractors as violative of the Fifth Amendment, which has a due process clause that applies to the federal government, but the Supreme Court has interpreted that due process clause to implicitly require equal protection, in the same way as the Fourteenth Amendment’s explicit and separate equal protection clause applies to (and only to) the states. White-owned companies vying for federal (or state or local) government contracts, the court held, cannot be disadvantaged in the competitive application process for government contracts by an affirmative-action program seeking to increase the very low number of racial-minority-owned government contractors.
The Koch Brothers could win a reverse-discrimination lawsuit, should they ever apply for any government contract or other special treatment for their businesses through a competitive application process. Or should their lobbyists ever fall short, and the Kochs learn that racial minorities get more business subsidies than the oil and gas industries.
Or should hell freeze over. But I’m speaking in jurisprudential theory here., not in political theory.
So the suspect category for qualification for strict scrutiny, regarding race, is simply race. Nothing else. Whites get to piggyback on the strict-scrutiny discrimination standard, instituted specifically and narrowly to protect racial and ethnic minorities, by simple virtue of the fact that white is a race.
Oddly enough, last spring there was a moment when it looked like the lack-of-political-power criterion was about to be restored as a prerequisite to strict-scrutiny classification. Not the historically-discriminated-against criterion; just the lack-of-political-power criterion. But it was notable because it was at least one Conservative Movement justice–Antonin Scalia, I believe, and one other, Roberts, I think–who invoked it. During oral argument in at least one of the two same-sex-marriage cases (I can’t remember whether it was in both or only in one), Scalia and, I think, another justice noted that homosexuals are no longer without political power, as evidenced by their success in enacting same-sex marriage statutes in a sew states and obtaining favorable court rulings in a couple of other states. This, the justice (or justices) suggested, maybe should defeat the claim that anti-gay laws should be analyzed for muster under equal protection jurisprudence using the strict-scrutiny standard.
After all, Scalia said, strict scrutiny under equal protection jurisprudence requires a lack of political power to try to get the law changed; Adarand Constructors, be damned! For the moment, anyway. (Or it requires a violation of a “fundamental” constitutional right–a constitutional right expressly proclaimed by the court to be a fundamental one, and only certain select ones are–which is the only type of claim of denial of equal protection, other than one based upon membership in a particular group, that prompts strict-scrutiny analysis.) And anyway, Scalia pointed out, the sole purpose of the Fourteenth Amendment, back when it was drafted and then ratified, was to protect people who had been slaves, or who were descended from slaves, or who were, or whose ancestors would have been, slaves had they lived in a state south of the Mason-Dixon line.
Scalia is an originalist, after all. And he apparently when he said that, he had forgotten that Abigail Fisher, the unsuccessful white University of Texas/Austin applicant who challenged the constitutionality of Texas’s mild affirmative action freshman-admissions system for its state universities, and whose case had been argued to the court last October and was still pending last spring, was white and a resident of an upscale Houston suburb. In his dissent in Grutter, Scalia had written, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception”. He reiterated that sentence in a one-paragraph concurrence when Fisher was decided in late June, the same week as the same-sex-marriage cases were decided. Fisher went as far as it could to kill affirmative-action programs at state colleges and universities without overruling Grutter. The petitioner, Abigail Fisher, Anthony Kennedy and Scalia both noted, had not actually asked the court to overrule Grutter, but instead had argued that Texas’s program went beyond what Grutter allowed. And, since Fisher was not a campaign-finance-law case, the court decided not to go beyond what the petitioner to the court had asked it to rule.
And anyway, there was that pesky problem of arguing the narrowness of the application of the strict-scrutiny equal protection standard in Fisher and then, for Scalia, Roberts, Clarence Thomas and SamuelAlito, blithely reversing course two days later in dissents in one of the same-sex-marriage cases, United States v. Windsor, which struck down the federal Defense of Marriage Act. Section 1 of the Fourteenth Amendment, the section that contains the equal protection clause, does not specifically state that it applies to gays. But neither does it say that its protections are limited to African Americans, or, for that matter, to racial discrimination. It says it pertains to all persons. Gays are persons.
But even if Scalia’s originalist view is accepted and the court suddenly reverts back to before the era of modern equal protection jurisdiction began in the early 1940s, and a majority of justices state that the equal protection clause prohibits only discrimination on the basis of race because that was how the amendment was understood when it was drafted and ratified–and that whites are decendants of American slaves, in the South and in Michigan–this would require them to uphold the Sixth Circuit Court of Appeals’ ruling in Coalition to Defend Affirmative Action v. Schuette that the Michigan voter initiative that passed in 2006 amending the state constitution to ban affirmative action programs in the state’s public universities itself violates the equal protection clause.
Here again I’ll borrow from the New York Times editorial:
Advocates of affirmative action sued the state on grounds that the amendment violates the United States Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.
For instance, an applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive and arduous process.”
Michigan, in response, argues that the amendment does not violate equal protection because it treats all races the same. But the Sixth Circuit opinion said the denial of equal protection is not in treating races differently in the university admissions process but instead in treating racial-minority interest groups differently from other non-racial-minority minority interest groups, in effectively changing the very nature of the political system itself only for those racial-minority groups. Every other minority interest group can try to change a law or a government policy through the normal political process of lobbying or trying to defeat or elect certain candidates, including for the state’s universities’ publicly elected boards of regents or trustees. It certainly seems to me that this is pretty much what Section 1 of the Fourteenth Amendment prohibits, in its equal protection clause as well as its (admittedly moribund) privileges and immunities clause.
Last year, the United States Court of Appeals for the Sixth Circuit rejected that claim, striking down the amendment because it especially harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.
The Times editorial also notes the Sixth Circuit’s recitation of an appalling problem with this particular voter initiative–a problem to which I was witness. The editorial says:
This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. That was surely true in Michigan, where the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” according to the federal appeals court. In some cases, voters were tricked into believing that the measure actually supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”
Yes. Make that, Yes! As it happened, in the ten weeks or so leading up to the November 2006 election, I was spending quite a bit of time on the University of Michigan campus in Ann Arbor, and also was reading the student newspaper, the Michigan Daily, almost daily. And I remember the utter dismay, on campus and in Ann Arbor and elsewhere among many in the surrounding area, at the widespread campaign to mislead about the very nature of the proposed amendment.
So for me, in some sense, tomorrow’s argument at the court will be personal.
The court has delineated the parameters of permissible public-university admissions affirmative action programs under its current equal protection jurisprudence, which, for what in my opinion is not a legitimate reason, privileges the rights of whites over, say, the rights of high school seniors who don’t have a parent who is an alum of the school. As the Times editorial says, and applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But at most universities, including public ones, they don’t have to lobby; alumni connections are considered in admissions. And though those who oppose that policy can lobby, and have lobbied, the university administration or its popularly elected governing board, at the University of Michigan and, probably at the University of Texas, it has been to no avail. Not because those with alumni connections are a majority of the public, but because they have political and financial clout.
The Michigan state constitutional amendment is undeniably race-based discrimination in access to the normal political process.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.
We have these statements right from two horses’ mouths. Or keyboards.