With the holidays coming up this is going to be the last posting of the year, I will resume after the holidays are over but it seems to make sense for us to take a couple weeks off.
However before I go on break I have a big case to review, one that covers not only a serious legal issue but one that prompts major political and social debate, the topic of affirmative action and the efforts of voters to place restrictions on the practice.
This case to us from the state of Michigan and while it certainly has affirmative action aspects to it is actually a much more complex matter.
It was argued before the court in October of this year and Justice Kagan is not participating, thus leaving the option of a tie vote.
The case has its origins in Proposal 2 which is a constitutional amendment adopted by the voters of the state of Michigan in 2006. The initiative banned affirmative-action in the state in basically all areas including college admissions.
The initiative was of course challenged by a number of organizations and made its way through the court system. It eventually arrived at the Sixth Circuit Court of Appeals for review. Initially it was examined by a three-judge panel which struck down the affirmative-action ban by a vote of 2 to 1. It was then reviewed by the full-court which affirmed the panel decision by a vote of 8 to 7 (with five dissenting opinions)
In making its decision the Sixth Circuit did not rely so much on affirmative-action theories as it did on an area of the law called political process theory.
The basic argument being that if an applicant to the University of Michigan believes that a particular quality (say military service) should be used as a factor in admissions they can petition the Board of Regents of the University and if they get a majority of that board to vote in their favor then they have succeeded.
By contrast if someone believes that race should be used as a factor they must seek an amendment to the Michigan Constitution a much more difficult and time-consuming process.
In making its ruling the majority sided two US Supreme Court decisions which it felt supported their position
The first case was Hunter v. Erickson (1969) 393 US 385.
In Hunter the court examined an amendment to the charter of the city of Akron Ohio which prohibited the city Council from implementing any ordinance dealing with racial religious or ancestral discrimination in housing without the approval of a majority of the voters of that city.
In that case the court voted 8 to 1 that the ordinance violated equal protection under the 14th amendment. They based this ruling on the fact that any other ordinance passed by the city Council would become effective immediately unless 10% of the voters petition for a referendum.
This meant that people seeking to benefit from city Council action for any purpose other than a nondiscrimination law could do so by obtaining a majority of the city Council while those seeking such a law would need to amend the charter at election.
The second case cited by the majority the Sixth Circuit was Washington v. Seattle School District No 1. (1982) 458 US 457.
This case stemmed from a school busing program in the city of Seattle Washington. A school district had adopted a comprehensive busing plan to integrate the schools even though there’d been no court or administrative finding of segregation.
The voters of Washington state adopted an initiative which required a neighborhood school policy i.e. no busing unless there was either mandatory busing ordered by the courts or a few special categories of voluntary busing in non integrative areas (such as special education or overcrowded schools).
The court voted 5 to 4 to hold that the initiative violated the equal protection clause by moving the power over busing for purposes of integration from the local district to statewide control.
Once again the basic argument being that others seeking changes in the way schools were populated could do so at the school district board level while those seeking to correct for perceived segregation had to change statewide law
It would seem that these two cases are quite close to the Michigan situation and one might wonder how a of the members of that court could have dissented or how the Ninth Circuit could have reached a different conclusion
Of course is always the case there are two sides to every argument and there are strong points in favor of both the dissenters and of the Ninth Circuit case
In making its ruling the Sixth Circuit was in direct conflict with the ruling issued by the Ninth Circuit Court of Appeals when it examined a similar voter passed initiative in the 1990s
That case was The Coalition For Economic Equity v. Wilson (1997) 122 F.3d.692
In 1996 the state of California passed a similar law which stated that the state could not use race as a factor to either discriminate against or grant preference to any person or group for employment, education, etc.
A challenge to the law was filed almost immediately. The District Court hearing the case reviewed the law and made a finding of fact that its application would eliminate programs which would in turn reduce opportunities for racial minorities areas of employment education etc.
It further found that the plaintiffs were likely to succeed both on their claim of general equal protection violations as well as on the political structure or political access theory and thus the District Court granted a preliminary injunction blocking enforcement of the law
The Ninth Circuit Court of Appeals reviewed this ruling and reversed the granting of the preliminary injunction and granted expedited review of the case overall.
In looking at the case on review the Ninth Circuit found the law to be constitutional
In making this decision the court cited Crawford v. Board of Education of the City of Los Angeles, 458 U.S. 527 (1982). This case was issued the same day as the decision in the Seattle v. Washington matter.
In Crawford the USSC upheld a 1979 law busing law passed by voters which stated that busing would not be allowed except 1) to remedy a 14th amendment violation or 2) if ordered by a court.
The court upheld the law stating that since the California law specifically stated that not only could courts order busing to correct violations but that school boards could also voluntarily engage in such programs.
In essence it did not prohibit busing it merely said that all school boards were required to do was what the 14th amendment required or a court ordered. By contrast other laws prohibited all busing and did not offer the option of curing the 14th violations
The basic logic being that a state can add to the minimal federal constitutional protections if it chooses to but it is not required to do so and repealing such extensions are not a violation of the Constitution
When the 9th looked at Proposition 209 they adopted this kind of logic.
First in looking at the conventional equal protection argument the court found that since the equal protection clause prohibits discrimination based on race and since the law specifically stated nobody can be discriminated against based on race
With regard to political structure argument the court chose to differentiate from Akron by stating that in Akron the law removed protections from minorities seeking to address discrimination while this law specifically prohibits any such discrimination.
In addition it only took away rights granted by the state above that required by the Constitution (IE the 14th doesn’t require that we redress past discriminations). And the USSC has voted several times to hold the law valid.
Conflict between two rulings deals with how you see discrimination and segregation as applied to schools, etc
So is there a difference between encouraging diversity to address past discrimination versus preventing current active segregation or discrimination?
Also is there de facto discrimination today based on unequal funding, etc
In a case like this Justice Kennedy is of course a key vote and I think with Kennedy we can look to one case he participated in where the same Seattle school district from the 1982 case was again before the court.
This was a 2007 case of Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701
In that case the court looked at school programs in both Seattle and Louisville school districts (interestingly enough the same Seattle school district that was involved in the earlier court case).
In Seattle students were allowed to choose any high school they wished to attend but when (as would often happen) a school got too many applications a series of tiebreakers to determine who got in, and one of the key tiebreakers was a racial factor geared to match the school to the same mix as the overall student population.
The court in that case ruled in a complicated 4-1-4 ruling with Justice Kennedy as the (big surprise) key swing vote.
He joined conservatives in holding that the programs in question were not narrowly tailored enough and thus should be struck down but he sided with the 4 liberals in holding that compelling interests do exist to promote racial diversity in education (and presumably other areas of society).
Based on what was said during the arguments it appears likely in this case the 4 conservative Justices would vote to uphold Proposition 2 while the 3 liberal ones (sans Kagan) would vote to affirm the 6th Circuit and strike down the law.
For his part Justice Kennedy seemed to be looking for a way to uphold the 6th without striking down past cases, taking a particular interest in the proposal that such a ruling could be made.
So my guess is we will see either a 4-4 tie (which would uphold the 6th) or perhaps a 5-3 ruling doing so (if one of the conservative justices gives in to precedent in order to shape the opinion narrowly)
Copyright 2013 The Moderate Voice