By Shobana Subramanian
Chief Justice Roberts said of affirmative action: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race” Parents Involved in Community Schools v. Seattle School District No. 1 (2007). His statement sums up the struggle faced by affirmative action. It draws its power from the Equal Protection Clause of the Fourteenth Amendment, which prohibits the government from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and yet it differentiates between individuals on the basis of race. U.S. Const. amend. XIV, § 1.
Grutter v. Bollinger (2003) labeled affirmative action as a necessary evil, with Justice Sandra Day O’Connor predicting, “[In] 25 years … the use of racial preferences will no longer be necessary to further the interest approved.” Proponents of affirmative action, in this case, successfully argued that a “diverse student body” was a compelling state interest. But affirmative action’s opponents were not willing to wait for an unspecified expiration date they feared might not even exist.
So in 2006, the state of Michigan amended its constitution to ban the use of race as a factor in public university admissions. Five years later, the amendment, commonly known as Proposal 2, was struck down by a federal appeals court on the grounds that it “alter[ed] Michigan’s political structure” and “burden[ed] racial minorities.” Now the case Schuette v. Coalition to Defend Affirmative Action is to be decided by the Supreme Court. The halfhearted nature of Grutter leaves the question of affirmation action somewhat open.
However, it is important to note that Schuette is not questioning the constitutionality of affirmative action but the constitutionality of an amendment banning affirmative action. This vital distinction will prevent the Court from using Schuette to overturn Grutter. The Court was put in a similar situation earlier this year when the petitioner in Fisher v. University of Texas (2013), a case dealing with UT Austin’s “10% plan,” did not ask the Court to overturn Grutter. In that case, the Court chose to vacate Fisher on the grounds that a lower court did not properly apply strict scrutiny, allowing Fisher to make her case again.
Affirmative action’s constitutionality, or lack thereof, is irrelevant to Schuette. There is no need to argue against affirmative action: Even if it were constitutional, that would not protect it from being banned by a state government. In Gregg v. Georgia (1976) the death penalty was ruled constitutional under the Eighth Amendment; and yet since 1963, it has been outlawed in Michigan’s state constitution. If the Court rules an action unconstitutional, then the states cannot implement it. It does not follow that the opposite is true.
The respondents based most of their argument on the Equal Protection Clause. They went so far as to say that “[the] Constitution … is not color-blind,” ironically rejecting Justice Harlan’s famous dissent in Plessy v. Ferguson (1896) on the grounds that it did not do justice to the Fourteenth Amendment’s promise of equality. However, that is an argument in favor of equality of results rather than equality of process. Nothing in the Fourteenth Amendment specifically calls for either.
Under Proposal 2, minorities cannot petition universities to adopt affirmative action policies since that decision is no longer in the university regents’ hands. Alumni associations and donors, the respondents argued, regularly demand and receive special privileges from universities. However, differentiating between applicants based on legacy status is not the same as differentiating between them based on race. The main kinds of discrimination courts consider as Equal Protection violations, in increasing levels of scrutiny, involve age (rational basis scrutiny, with the burden of proof on the individual), gender (intermediate scrutiny, with the burden of proof on the government to show a relevant state interest), and race (strict scrutiny, with the burden of proof on the government to provide a compelling state interest). Legacy status and athletic ability are far from being considered on the same level as any of these violations.
The respondents also took a political stance by insisting that affirmative action was the only way to achieve the true equality of result that Lyndon B. Johnson called for in his 1965 commencement address at Howard University: “You do not take a man who for years has been hobbled by chains, [and] liberate him … saying, ‘[Y]ou are free to compete with all the others.’” President Johnson stressed the long history of abuse and discrimination African Americans faced as the reason affirmative action programs were necessary. Fifty years later this rationale has been altered to fit the modern underrepresented community, which includes, most crucially, Hispanics. Discrimination faced by “disenfranchised” minorities on a daily basis must be accounted for, the respondents argued, by preference in university admissions.
But it is difficult to consider the respondents’ arguments regarding the morality of affirmative action since morality is so subjective. After all, Proposal 2 was passed through a statewide referendum despite the ardent campaigning of minority groups. Obviously that means a majority of Michigan thought affirmative action was unfair to non-minorities who also work hard to secure admission to Michigan’s universities. The respondents’ moral arguments rely on the assumption that because their moral standards match President Johnson and Martin Luther King Jr.’s, by default they are correct. The law has no place for such assumptions since it relies on the principle of fairness to all, and placing one party on a higher moral platform than another violates that fundamental rule.
Another hallmark of the judicial system is the concept of rights and privileges. A tyrannical majority cannot take away the rights of a minority, but minorities do not have a right to special treatment. Neither do legacies nor athletes nor any favored group. They all receive privileges. There is nothing unconstitutional about taking away a privilege. Indeed Grutter foretold that affirmative action would eventually cease to exist.
The respondents cited the Fourteenth Amendment’s promises more often than they cited the Fourteenth Amendment itself, in their attempt to justify affirmative action as a right. While legislative intent can be considered, it should not be relied on as the only means of supporting a constitutional interpretation. The legislative process is too complicated to be summed up in the condensed language of the Constitution.
Defending Michigan’s legislative intent, Michigan Attorney General Bill Schuette highlighted the benefits of Proposal 2. Supporting what is commonly known as “mismatch theory,” data collected (from California after it banned affirmative action in 1997 with Proposition 209) suggests that minority students who were admitted to universities without their races being considered performed much better than those admitted under affirmative action. By 2002, African Americans and Hispanics were being admitted at the same rate as they were before Proposition 209. Their admission rate continued to rise, as did their overall GPAs. The California data is evidence of affirmative action’s obsolescence. Underrepresented minorities can and do hold their own in a competitive application process.
The respondents viewed the revival of states’ rights as a threat to minority rights. While it is true that historically it has been the federal government that has intervened and liberated the oppressed, since 1925, the Bill of Rights has been applied to the states. This was achieved through a process called “incorporation”: Using the Fourteenth Amendment’s clause, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” various federal rights selectively became rights held at the state level as well. U.S. Const. amend. XIV, § 1.
Federal courts can force rebellious states to abide by judicially interpreted rights just as they have for the last ninety years. The rise of state power in the legislative arena does not imply a fall in federal judicial power. If a right is truly a right, then federal courts will enforce it. The respondents seem to suffer from an excessive fear of evils against which stand adequate protections.
Their fear stems from knowing that, no matter how much they twist the language of the Fourteenth Amendment, affirmative action is simply not a right. The respondents cannot expect a privilege to be protected simply because of its constitutionality. The Court, therefore, should rule in favor of Schuette and uphold Proposal 2.
Of course, none of this legal wrangling will matter if the Court rules in favor of Fisher the next time they hear her case. If affirmative action is ruled unconstitutional (and there is a good chance it will be), the respondents here will have a lot more to worry about than a state constitution amendment. They will have to come to terms with what the highest court in the land has told them is the only way to stop discriminating—that is, to stop discriminating.