Justice O'Connor's Lax Scrutiny

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Justice O'Connor's Lax Scrutiny

Post by dblboggie on Tue Jul 05, 2011 9:00 pm

Wall Street Journal - July 5, 2011

Justice O'Connor's Lax Scrutiny
A new ruling in favor of racial preferences could spell their doom.


By JAMES TARANTO

"Michigan Attorney General Bill Schuette said . . . he will appeal a court ruling that overturned the Michigan Civil Rights Initiative, which bans the use of race and gender preferences in college admissions," the Detroit News reported Friday. Earlier the same day, a panel of the Sixth U.S. Circuit Court of Appeals voted 2-1 to strike down the initiative, also known as Proposal 2, as unconstitutional.

If you're hearing about this for the first time, you may have the same reaction we did, which is to wonder how in the world a court could find that Michigan's racial preferences in college admissions--which barely passed constitutional muster when the Supreme Court upheld them eight years ago--are constitutionally required. Perhaps the Equal Protection Clause allows for some exceptions, but it's downright Orwellian to claim that equal protection implies mandatory discrimination.

Well, it's complicated. Judge R. Guy Cole, who wrote the ruling in the unwieldily named case of Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary v. Regents of the University of Michigan (hereinafter BAMN), was clever enough to avoid reaching a conclusion that is ridiculous on its face. Instead, taking his cue from the plaintiff organization's name, he came at it from a different angle.

His ruling concedes that the Equal Protection Clause does not require Michigan to maintain policies that discriminate in favor of minorities. It concludes, however, that the means by which the state banned such discrimination--a ballot measure amending the Michigan Constitution--violated the clause. "Proposal 2 unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities," he wrote.

That conclusion is consistent with a pair of decades-old Supreme Court precedents. But it is too clever by half. Not only is Judge Cole's decision unlikely to withstand appeal, it could provide an opening for the Supreme Court to revisit its 2003 ruling that upheld Michigan's racial preferences.

The two precedents on which Cole bases his conclusion are Hunter v. Erickson (1969) and Washington v. Seattle School Dist. No. 1 (1982). In Hunter the Supreme Court struck down an Akron, Ohio, ballot initiative that had repealed a municipal fair-housing ordinance and required that any future laws against housing discrimination be approved by a majority of voters as well as the City Council.

In a decision by Justice Byron White, the court held 8-1 that although Akron was under no obligation to enact a fair-housing law, the creation of an additional hurdle that such legislation must pass constituted an invidious distinction "between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends." Since those in the former group belonged to minorities that are protected from discrimination, the ballot measure violated equal protection.

But how could the Akron initiative, whose effect was to permit discrimination, be the equivalent for equal protection purposes of the Michigan initiative, which prohibited discrimination? That's where Seattle comes in. Washington's largest city used what was known as "forced busing" to encourage racial mixing in its public schools. Washington voters approved Initiative 350, a statewide ban on busing for racial integration. The high court struck down the measure, holding that, like the Akron one 13 years earlier, it unconstitutionally burdened minority members, who were the presumed beneficiaries of busing.

Justice Harry Blackmun's opinion took the court into Orwellian territory. He wrote "that the initiative established an impermissible racial classification in violation of Hunter v. Erickson, . . . 'because it permits busing for non-racial reasons but forbids it for racial reasons.' " By such logic, if one can even call it that, the Equal Protection Clause violates itself, because it permits discrimination for a host of nonracial reasons but forbids it for racial reasons.

There is nonetheless an important distinction between forced busing circa 1982 and racial preferences in college admissions today. The constitutionality of the former was not then in dispute. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the justices had unanimously blessed judicially mandated busing as a remedy for de jure (state-imposed) segregation.

Seattle's segregation was merely de facto, and its busing program had not been imposed by a court. The justices had not expressly upheld busing in such circumstances. But Blackmun noted in a footnote that the "appellants . . . do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation." (Such assignments would be successfully challenged, in Parents Involved in Community Schools v. Seattle School District No. 1, in 2007.)

By contrast, the constitutionality of the University of Michigan's racial preferences had been called into question before Proposal 2 was enacted, in a pair of cases that reached the Supreme Court in 2003. In Gratz v. Bollinger, the court struck down the university's undergraduate preferences. In Grutter v. Bollinger, the court, in a 5-4 ruling written by Justice Sandra Day O'Connor, upheld the law school's supposedly somewhat looser preferences--but on very narrow grounds (citations and needless brackets omitted from all quotations of court opinions):

As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a 'critical mass' of minority students." The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

Here is Judge Cole explaining why Proposal 2 resembles Washington's antibusing initiative:

Proposal 2, like Initiative 350, has a "racial focus," because the Michigan universities' affirmative-action programs "inure primarily to the benefit of the minority, and [are] designed for that purpose," for the reasons articulated by the Court in Seattle. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities' representation at many public schools, race-conscious admissions policies increase racial minorities' representation at institutions of higher education. Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan's universities in the first place for this reason, and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan's institutions of higher education. Ample evidence thus grounds our conclusion that race-conscious admissions policies "inure primarily to the benefit of the minority."

How can Judge Cole's finding that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" be reconciled with binding Supreme Court precedent that such preferences can be justified only by "the educational benefits" of a "diverse student body"?

Cole's awkwardly written attempt to finesse the problem only makes it more glaring. He claims his conclusion that Proposal 2 has a "racial focus" as required by Hunter and Seattle "is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole." Thus he reduces the purported educational benefits of diversity--the entire basis on which the high court rested the constitutionality of Michigan's racial preferences--to an afterthought.

Unless the full Sixth Circuit overturns Judge Cole's ruling, it is a certainty that the Supreme Court will take it up, for it raises questions of the sort that only the justices can resolve. Not only does it expose a tension between two lines of the high court's jurisprudence, but there is also a split between appellate courts. The Ninth Circuit has upheld Proposition 209, a similar ballot initiative from California.

The justices could resolve BAMN in three different ways. The narrowest, because it would leave all existing precedents undisturbed, would be to hold that the Hunter and Seattle framework does not apply to Proposal 2 because the court has already held in Grutter that the constitutionality of the policies in question depends on their having not been designed to "inure primarily to the benefit of the minority." Since the four liberal justices have a strong interest in preserving the "diversity" rationale for racial preferences--especially Elena Kagan, a former elite law school dean--such a ruling could very well go 9-0.

The court could strike down the 1982 Seattle ruling and hold that ballot initiatives or similar measures that affect race are constitutional as long as the substance of the policy in question does not offend equal protection. Seattle is an anachronism anyway: a 5-4 decision in favor of an obsolete social policy by a court whose members have all since retired, died or both. So it's hard to predict how today's justices would come down on that one.

The most aggressive approach--and therefore perhaps the unlikeliest, but also the one that would be most satisfying to those of us who care about the integrity of the law--would be to use BAMN as an opportunity to revisit Grutter. Judge Cole's assertion that Michigan's racial preferences were designed to "inure primarily to the benefit of the minority" may, after all, be true. We think it is. If we are right, the "diversity" rationale that the Grutter majority accepted was a fraud.

That would mean the court was derelict in its duty, as Justice Anthony Kennedy argued in his Grutter dissent:

The separate opinion by Justice [Lewis] Powell in Regents of Univ. of Cal. v. Bakke is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. . . . If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.

If the current court revisits Grutter, the result will certainly be a 5-4 ruling over bitter liberal dissent. It probably won't quite spell the end of racial preferences in university admissions, for Kennedy endorsed the "diversity" rationale in theory. His dissent was from O'Connor's travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham of strict scrutiny.

Justices Antonin Scalia and Clarence Thomas, by contrast, did not accept the proposition that diversity justifies discrimination. And although Chief Justice John Roberts and Justice Samuel Alito have not weighed in directly on the question, Roberts wrote in his 2007 Parents Involved opinion that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Scalia, Thomas and Alito joined that portion of Roberts's opinion, but Kennedy did not.

It is unusual for the court to reconsider its own constitutional precedents when it can decide a case more narrowly. But that's just what the justices did last year in Citizens United v. Federal Election Commission, when a 5-4 majority led by Justice Kennedy overturned another 2003 O'Connor precedent. If BAMN reaches the high court, Kennedy will again have an opportunity to correct one of O'Connor's mistakes.
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dblboggie




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Re: Justice O'Connor's Lax Scrutiny

Post by dblboggie on Tue Jul 05, 2011 9:03 pm

I think this quote by the Chief Justice sums up the issue quite nicely:

"the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I think it's long past time to do away with this discriminatory law.

What do you guys think?
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Re: Justice O'Connor's Lax Scrutiny

Post by TexasBlue on Wed Jul 06, 2011 3:36 pm

dblboggie wrote:I think this quote by the Chief Justice sums up the issue quite nicely:

"the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I think it's long past time to do away with this discriminatory law.

What do you guys think?

No "favors" based on race. The long we keep it up, the longer racism will exist. Affirmative Action was a necessary thing back in the 60's and early 70's. I've said it a 100 times now.... people of color have had 40+ years to get ahead and failed to take advantage of that opportunity.
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TexasBlue




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Re: Justice O'Connor's Lax Scrutiny

Post by dblboggie on Wed Jul 06, 2011 9:33 pm

TexasBlue wrote:
dblboggie wrote:I think this quote by the Chief Justice sums up the issue quite nicely:

"the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I think it's long past time to do away with this discriminatory law.

What do you guys think?

No "favors" based on race. The long we keep it up, the longer racism will exist. Affirmative Action was a necessary thing back in the 60's and early 70's. I've said it a 100 times now.... people of color have had 40+ years to get ahead and failed to take advantage of that opportunity.

Actually, I would disagree with you on the point that people of color have failed to take advantage of the equality of opportunity our Constitution offers. There are millions of those "people of color" who have done fabulously well in America in the last 40+ years. There were even former slaves in the 19th century who became enormously successful and even achieved elected office in our federal government.

Sure, the barriers and prejudices were certainly greater prior to the early 70's, but the brilliance of our system of government is that even before "affirmative action" and the abolition of Jim Crow laws, blacks in America were still able to achieve success through hard work and persistence.

So we do agree on one point, no more favors based on race. There is just no need for this law any longer.
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dblboggie




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Re: Justice O'Connor's Lax Scrutiny

Post by TexasBlue on Thu Jul 07, 2011 5:11 am

I guess I should've been more clear. There are far too many blacks who failed to take advantage of the system in the 40+ years. The laws are still there and the black community is still in the shitter for the most part.


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“I’m not in favor of fairness. I’m in favor of freedom, and freedom is not fairness. Fairness means somebody has to decide what’s fair.” - Milton Friedman
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