Schuette v. Coalition to Defend Affirmative Action - Opinion Announcement - April 22, 2014 (Part 2)

Schuette v. Coalition to Defend Affirmative Action

Media for Schuette v. Coalition to Defend Affirmative Action

Audio Transcription for Opinion Announcement - April 22, 2014 (Part 1) in Schuette v. Coalition to Defend Affirmative Action
Audio Transcription for Oral Argument - October 15, 2013 in Schuette v. Coalition to Defend Affirmative Action

Audio Transcription for Opinion Announcement - April 22, 2014 (Part 2) in Schuette v. Coalition to Defend Affirmative Action

As you've just heard, Justice Ginsburg and I respectfully dissent.

This case implicates a bedrock process based right, the right of all citizens to participate meaningfully and equally in self government.

My colleagues fundamentally misunderstand the nature of the injustice worked by Section 26.

They say that this case is about who may resolve the debate over the use of race in higher education admissions.

This case is not about who may resolve that debate.

The voters of Michigan clearly can.

This case is about how that debate may be resolved.

Through the existing political process, Michigan voters were free to eliminate the use of race in admissions in any numbers of ways.

For example they could have persuaded Michigan's elected university boards to change their minds, or they could have mobilized efforts to vote into office board members who shared their views.

But the Equal Protection Clause forbade them from doing what they did, instituting a more burdensome political process for decisions about the use of constitutionally permissible race considerations while leaving all non racial types of admission policies to the university boards.

45 years ago, this Court decided Hunter v. Erickson and 13 years after that it decided Washington versus Seattle School District No. 1.

As my opinion explains in more detail, the Court decided those cases in the face of a history replete with instances of the majority stymieing the political voice of the minority through political restructurings.

The Court responded in Hunter and Seattle by recognizing what we now call the political process doctrine, that doctrine teaches that the majority may not reconfigure the political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit, discrete and insular minorities, to a more burdensome political process than all other similar laws.

The Court held that the Fourteenth Amendment cannot tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to play special burdens on the ability of minority groups to achieve beneficial legislation.”

That type of structure, the Court explained and I'm using its words both times is, “is no more permissible than denying the minority the right to vote on an equal basis with others.”

To focus on Seattle briefly, that case involved an initiative enacted by a majority of Washington State's voters that prohibited racial integrative busing in the wake of Brown versus Board of Education.

Prior to the initiative, all decisions about educational policy were in the hands of local school boards.

After the initiative, those citizens favoring the elimination of de facto school segregation through student assignments had to seek relief either from the state legislator, legislature or through another statewide initiative.

Yet authority over all other student assignment decisions remained vested in the school boards.

This type of restructuring, the Court reasoned, violated the Equal Protection Clause because it required those in favor of school integration which benefited minorities to “surmount a considerably higher burden -- hurdle than persons seeking comparable legislative action.”

This should sound familiar because the same is true of Section 26.

Prior to Section 26, all of the admissions policies of Michigan's public university were in the hands of the elected school boards.

After Section 26, all admissions policies remained in the hands of the Board with one notable exception, whether to consider race and admissions in constitutionally permissible ways.

For those policies, and those policies only, voters must undertake the Herculean task of amending the State Constitution.

Michigan's Constitution has been amended only 20 times from 2014 to 2000 and none of those initiatives benefited minorities.

In fact, it is difficult to find even a single statewide initiative in any state in which voters approved policies that explicitly benefit racial or ethnic minority groups.

As a result of Section 26, there are now two very different processes through which a Michigan citizen may influence admissions policies.

One for those citizens interested in race-sensitive admissions policies and one for everybody else.

The practical effect is that a white graduate of a public Michigan university who wishes to pass his historical privilege onto his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigan citizen who was denied by racial discrimination the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had.

My colleagues endorse this political restructuring because it is the product of democratic action, but to know the history of our nation is to understand that democratically approved legislation often has discriminated against minorities, and time and again, including in Hunter and Seattle, this Court has stepped in to overturn such legislation to preserve the rights of minorities.