Relevant and even prescient commentary on news, politics and the economy.

More on Schuette v. Coalition to Defend Affirmative Action–this time from a reader who is a U-Mich. undergraduate alum and currently a Ph.D. candidate there in Sociology*

Reader Dan Hirschman, a U-Mich. undergraduate alum and currently a Ph.D. candidate in Sociology there, wrote the following comment to my post here yesterday titled “What I agree with Richard Kahlenberg about on Schuette v. Coalition to Defend Affirmative Action.  And what I don’t.”:

Dear Beverly,

Thank you for the fantastic analysis of this case over the past few days! The discussion of Scalia’s shifting invocations of the 14th Amendment have particularly useful for me as someone without a law degree trying to follow the ins and outs of the case.

I had one thought about the changing composition of UM’s campus. I’m a current PhD student, and a former undergrad, and I’ve also done some research with two other sociologists on the history of admissions and affirmative action here at UM. The big shift that, I think, explains the change in class make-up at UM is not the changing emphasis on race, but the combination of the (semi) privatization of the university (that is, the massive cutback in state support) and the simultaneous push to become a more elite university as judged by standards like the USNWR. For example, as far back as the 1980s, Michigan did very well in the USNWR, but was criticized for its relatively low SAT/ACT scores in comparison to other top 20/25 universities. Together, these goals called for a strategy of recruiting an ever-growing number of high achieving out-of-state students able to pay the Ivy-like out-of-state tuition and simultaneously bump up the average SAT/ACT score of the undergrad body.

These goals are then in explicit conflict with any strong form of class-based diversity. UM’s admissions policies – from the points-system of the mid-90s through the post-Gratz holistic assessment – included some attempt to account for economic diversity. For example, under the points system, students from the upper peninsula and Detroit both received extra points for being from underrepresented parts of the state. But these measures have always been seemingly weak against the larger forces pushing towards recruiting wealthier and higher achieving (in the sense of measurable achievements) students. This is not to excuse Michigan’s actions, but just to try to place them in the broader field of American higher ed in the past 30 years.

Berkeley and UCLA, in comparison, have maintained much stronger ties to the California educational system (through the stronger community college transfer programs, for example), and (until quite recently) much lower tuition supported by higher levels of state funding.

Also, and somewhat relatedly, if you haven’t seen it, Anna Kirkland and Ben Hansen have a fascinating paper analyzing Michigan’s undergraduate admissions diversity essay question, and how students interpret and respond to the questions by race and class.

To which I say: Thanks so much, Dan. Your comment is awesome.  And not just because of the first line in it!

And your point about the semi-privatization of U-M–a fact that has gone unmentioned in anything else I’ve read about the situation–is so, so important.

Again, thanks.

—-

*Title typo-corrected, 10/17.

 

Tags: , , Comments (5) | |

Scalia Changes His Mind … About the Purpose of the Equal Protection Clause.

Wow.  It looks, from SCOTUSblog’s Lyle Denniston’s report on the argument this afternoon in Schuette v. Coalition to Defend Affirmative Action, that I was, um … right in saying yesterday and again earlier today that this case is not, at heart, an affirmative action case.  The case is really about when a voter referendum can amend the state constitution to remove a particular issue from the normal political process.

This issue has a name–or, rather, the legal theory that challenges the constitutionality of such state constitutional amendments does.  It’s called the “political process theory,” which was developed in two old Supreme Court cases concerning voter-referendum amendments to a state’s constitution.  (I should have used the name in my earlier two posts, just so that I could now use it as shorthand in this post, but I didn’t.)

In Schuette, the voter referendum amended the state constitution to remove from the normal political process–lobbying legislators, local government officials university regents–the policy issue of race-conscious affirmative action in public university admissions processes.  So the case is about whether a voter initiative–in this case, one heavily funded by an out-of-state rightwing group–can amend the state constitution to remove access to the normal political process by people with a particular viewpoint on a particular issue.  This is the “political process theory” issue.  And according to Lyle Denniston’s report, it’s the issue on which Justice Kennedy–clearly the swing vote in this case–focused almost all of his very extensive questioning at the argument today.

But here’s something else in Denniston’s report that caught my interest:

[A.C.L.U. lawyer Mark] Rosenbaum’s time in argument was difficult enough, especially in the exchanges with Justices Alito and Scalia, but it turned out to be less challenging than the barrage that confronted the other lawyer opposing ”Proposal 2,” Detroit attorney Shanta Driver (who was a last-minute substitute for another lawyer scheduled to be in the argument).

Driver’s opening comments got her immediately into trouble.  She asked the Court to return the Fourteenth Amendment’s guarantee of legal equality “back to its original purpose,” which was to protect minorities.  Justice Scalia took strong offense to that, saying he thought the aim of the Amendment was to guarantee equality to all people.

The lawyer tried to hold her ground, but Scalia kept testing her thesis.   Had the Supreme Court ever issued an opinion saying that the Amendment was only to protect minorities? he asked. Driver conceded that there was no such case.

Okay.  As I mentioned in my post yesterday about Schuette, Scalia, in the argument last spring on the constitutionality of the Defense of Marriage Act, said the purpose of the equal protection clause was to protect the rights of former slaves and their descendents, and therefore does not grant equal protection of the laws to non-African Americans.  He has made that statement elsewhere, I believe, in speeches or interviews.  And he has said that because the purpose of the clause was to confer rights upon former slaves and their descendents, the clause does not apply to prohibit gender discrimination. The clause’s use of the word “people” to state whom its protections covered, notwithstanding.

But that view of his in the past, I see. At least until the next gay marriage case comes to the court.

Tags: , , , , , Comments (1) | |

What I agree with Richard Kahlenberg about on Schuette v. Coalition to Defend Affirmative Action. And what I don’t.

As Dan Crawford posted below, SCOTUSblog linked in its daily Round-up feature this morning to my AB post yesterday about Schuette v. Coalition to Defend Affirmative Action, which is being argued at the Supreme Court this afternoon. Dan posted the Round-up paragraph in which the reference appears.  It says:

Commentary on Schuette comes from Richard Kahlenberg, who in an op-ed for The Wall Street Journal argues that “[a] ruling in Schuette that promotes race-neutral strategies to boost minority admissions would reinforce the message the court tried to deliver last term in Fisher v. University of Texas but has largely fallen on deaf ears.” And at Angry Bear, Beverly Mann explains why she “expect[s] 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.”

I posted the following comment to Dan’s post:

Yikes. In reading that sentence that Amy Howe [of SCOTUSblog] quoted, I guess I better say that the rest of my post makes clear (I hope) that that sentence is facetious.

Facetious, it definitely is.  The chief justice will use, or try to use, this case to kill affirmative action in public higher education.

But after reading Dan’s quote of the SCOTUSblog paragraph, I decided to read the Kahlenberg op-ed in the Wall Street Journal.  Kahlenberg, the op-ed says, is a senior fellow at the Century Foundation, is author of “The Remedy: Class, Race and Affirmative Action,” published in 1996.

His op-ed is titled “A Fresh Chance to Rein In Racial Preferences.” And most of the article uses the University of Michigan/Ann Arbor as an example of why racial preferences per se as a state university admissions criterion are bad policy.  He argues instead for socioeconomic criteria, and identifies several major state universities that have used various tools to achieve some semblance of socioeconomic, and not-coincidendally racial, diversity.  U-M/Ann Arbor is not among them and has not even tried to be.

I couldn’t agree more.  On all points.  Anyone who spends so much as a couple of hours on or near campus on a weekday during the fall or winter semester would be struck by how almost-thoroughly white and upper-middle and upper-class the undergraduate, non-Asian student body is.  Denizens of Ann Arbor itself are not much into current-model upscale foreign-import cars–old Volvo station wagons and Detroit-made small and midsize cars are far more common–but walk through a student parking lot and you’ll probably see several of the he high end import variety.

And I can attest that this was so during the 2006-2007 school year, the last admissions year before the constitutional amendment at issue in Schuette became effective. Indeed, I recall a longtime U-M professor, then nearing retirement, lament how much the nature of the student body had changed since his early years teaching there in 1970s.  He said that back then, there was a feeling of real connection between the university and the Big Three automakers whose headquarters were only 40 miles or so away and whose manufacturing and design plants dotted the metro area, and the central part of the state, because so many of the students had parents or other family members who worked there.  Now, he said, the student body is almost all upscale. Macbooks outnumbered Windows-based laptops by, I’d guess, three to one.  And most of them were recent models.

Kahlenberg mentions the University of Florida/Gainesville as one of the public universities that has made a successful effort at socioeconomic and thus racial diversity in its undergraduate body. That is clear just from walking through the campus during the school year, as I did not long ago on a visit to North Central Florida. He also mentions UCLA, UC-Berkeley, the University of Georgia/Athens and the University of Texas/Austin. But he also could have mentioned Michigan State University, The University of Illinois.Champaign/Urbana, I believe, and the University of Wisconsin, I also believe.

What I suspect happened at U-M, although it’s just my speculation, is that in the wake of the Supreme Court’s two 2003 racial affirmative action programs, one case about U-M freshman admissions policies, the other about U-M law school admissions policies–both opinions which focused heavily on the legitimate state interest in racial diversity among its student body the university–the university began to focus almost entirely on racial diversity, but, as it happens, without a lot of success. Had the school ditched its alumni-legacy preferences, which Kahlberg points out, UCLA and UC-Berkeley did but U-M did not–and instead focused more on socioeconomic diversity, it probably would have been more successful at achieving racial diversity as part of the broader socioeconomic diversity.

But, for the reasons I explained (or tried to) in my post yesterday on Schuette, that case is not, in essence, an affirmative action case.  Kahlberg sort of acknowledges that.  He says:

At issue is whether voters can amend a state constitution to ban racial preferences by referendum, as Michigan voters did by 58%-42% in 2006. The Sixth Circuit Court of Appeals struck the measure down by an 8-7 vote in 2012, arguing that the amendment introduces an extra political hurdle for minorities. Whereas alumni can lobby the University of Michigan to strengthen legacy preferences for their children, the Sixth Circuit said, minority parents would need to amend the constitution to get racial preferences reinstated. “Such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” the court said.

This case is about whether a voter referendum can amend a state constitution in a manner that removes a particular type of group, or removes groups with a particular type of cause, from access to the normal democratic methods of lobbying elected or appointed officials–the legislature, a local governing body, the University’s Board of Regents.  That is what this case is about, and Kahlberg, unlike (surprisingly) Emily Bazelon in Slate yesterday, does not miss that point.  But he both says that he thinks the court will nonetheless use the case to kill affirmative action in public universities and urges the court to do that.  His justification:

Although minority voters cannot easily lobby to reinstate racial preferences in Michigan, they remain free to lobby for race-neutral programs that assist many minority students. These would include programs that help low-income students of all races—programs for more generous financial aid; for more community college transfers to the main campus of the University of Michigan in Ann Arbor; for an end to legacy preferences that disproportionately benefit white students; and for admitting students in the top of every high school class in the state.

Hey! They remain free to lobby for race-neutral programs that assist many minority students! Well, aren’t they lucky!  For now, anyway.

Tags: , , , , , Comments (5) | |

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.

Tags: , , , , , , Comments (8) | |