A clear majority of the U.S. Supreme Court sounded ready on Tuesday to uphold a Michigan referendum banning affirmative action in higher education. But the justices were less clear about whether they want to reverse a 40-year-old doctrine that bars changing the political process to disadvantage racial minorities.
The issue before the court was not whether affirmative action in higher education is permissible. So far, the justices have said it is. Indeed, one of the court's landmark cases upheld the affirmative action program at the University of Michigan Law School. But three years later, 58 percent of Michigan voters approved an initiative that amended the state constitution to ban such programs.
While the ban went into effect, it was challenged in court. Affirmative action supporters, contending that minority enrollment was plummeting, argued that the state constitutional amendment violated the federal Constitution by restructuring the political process along racial lines. Last year a federal appeals court agreed, and the state appealed to the Supreme Court.
Tuesday's arguments focused primarily on the "political process doctrine," which dates back more than 40 years. In two cases, the Supreme Court has held that the political structure cannot be altered to disadvantage minorities. In 1982, for instance, the justices ruled that it was unconstitutional for the state of Washington to amend its state constitution to prevent Seattle from using busing to voluntarily desegregate the city's public schools.
On Tuesday, Michigan Solicitor General John Bursch urged the Supreme Court to reverse the Seattle decision and others like it, if necessary. "Maybe the whole doctrine needs to be re-examined," he said, after a number of justices seemed unconvinced that there is a difference between the Seattle case and Michigan's.
Testing the state's argument, Justice Anthony Kennedy asked whether it would be permissible to pass a constitutional amendment requiring that all pro-affirmative action laws be approved by a supermajority in the state Legislature. Bursch replied that the court "might want to ... consider whether there's a discriminatory animus based on race," but that laws can't fall simply because they have a "racial focus."
The ACLU's Mark Rosenbaum defended the affirmative action programs as themselves democratically enacted by the governing boards, the regents, of the state's universities, who are elected by popular vote.
Chief Justice John Roberts asked whether there would be any problem "if the regents decided to revoke the affirmative action programs." That, answered Rosenbaum, would be "absolutely fine."
"So why is it different," Roberts inquired, when the "people of the state themselves make that decision?" The problem here, Rosenbaum said, is that the referendum changed the political process "from the ordinary" to "the extraordinary."
Justice Kennedy seemed dubious. "I just don't understand," he said, why the voters can't take away affirmative action but the regents or legislature can. Lawyer Rosenbaum responded that the people "have multiple options available to them" to change university policies. "The one option they don't have," he said, "is to treat racial matters different from all other matters."
Students seeking to enact or get rid of other preferences can lobby the regents, Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.
Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?
"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"
Justice Sonia Sotomayor stepped in with an answer. The line, she suggested, is "a very simple one. "The line is crossed when the political process is "changed specifically and only for race."
A decision in the case is expected by June.
ROBERT SIEGEL, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
The U.S. Supreme Court once again tackled the subject of Affirmative Action in higher education today. But the issue this time is not whether these programs are permissible - so far the justices have said that they are. The question now is whether voters can amend their state constitutions to ban these programs.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 2006, Michigan voters, by a 58 percent majority, approved an initiative that banned the very Affirmative Action programs that the U.S. Supreme Court had upheld in the state three years earlier. Affirmative Action supporters, contending that minority enrollment was plummeting, went to court and a federal appeals court agreed that the Michigan referendum unconstitutionally targeted racial minorities.
Michigan then appealed to the Supreme Court. Here's State Attorney General Bill Schuette on the steps of the High Court today.
BILL SCHUETTE: Michigan is an example of citizen democracy, where voters in our state said that it's wrong, fundamentally wrong, to treat people differently based on the color of your skin or your race.
TOTENBERG: But ACLU lawyer Mark Rosenbaum countered this way.
MARK ROSENBAUM: So what's really at stake is the integrity of the political process, that it be the same playing field and not two separate playing fields for all individuals.
TOTENBERG: Inside the Supreme Court chamber, the argument focused on a doctrine that dates back more than 40 years. It holds that the political structure cannot be altered to disadvantage minorities. For example, in 1982, the justices ruled that the state of Washington acted unconstitutionally when it amended the state constitution to prevent the city of Seattle from voluntarily using busing to desegregate schools.
Today, Michigan urged the Supreme Court to reverse the Seattle ruling and others like it, if necessary. Maybe the whole doctrine needs to be re-examined, said Michigan's advocate, John Bursch, after struggling to persuade the justices that there is a difference between the Seattle case and Michigan's.
Justice Kennedy: What would you do with a constitutional amendment that said pro-Affirmative Action laws, and only those, require a three-quarters vote of the state legislature?
Answer: You might want to consider whether there's a discriminatory animus based on race. But it can't be that any law falls if it has a racial focus.
Lawyer Bursch was followed to the lectern by the ACLU's Mark Rosenbaum, who defended Affirmative Action programs as themselves democratically enacted by the state board of regents, who are elected by popular vote.
Chief Justice Roberts: What if the regents decided to revoke the Affirmative Action programs?
Answer: That would be absolutely fine.
Roberts: So why is it different if the people of the state themselves make that decision?
Answer: The difference is what's going on is a change from the ordinary political process to the extraordinary; students seeking to enact or get rid of other preferences can lobby the regents. But racial minorities cannot. And in order to get back their preferences, they would have to embark on a difficult and multi-million dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.
Justice Kennedy: So the regents can take it away?
Kennedy again: Can the legislature take it away?
Answer: Yes, if the legislature has plenary authority to do that.
Justice Kennedy: But then the voters can't take it away? I just don't understand.
Answer: The point is that the people of the state have multiple options available to them if they don't like the way the universities are operating. The one option they don't have is to treat racial matters different from all other matters.
Also arguing against the Michigan referendum today was lawyer Shanta Driver. Justice Breyer posed this hypothetical to her: Most cities have a vast number of administrators of all kinds of programs. And now, if one of those administrators decides to adopt a racial preference for what may be a good reason but the city council votes no, to abolish that preference, is that unlawful?
No, replied Driver.
Justice Breyer: Where is the line then that would say we're not giving power to every administrator in the city to decide on his own whether to use racial preferences without a possibility of a higher-up veto?
Justice Sotomayor stepped in with an answer. I thought the line is when the normal way of doing things is changed through the political process, specifically for race and only for race.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.