Schuette v. Coalition to Defend Affirmative Action - Oral Argument - October 15, 2013

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

Audio Transcription for Oral Argument - October 15, 2013 in Schuette v. Coalition to Defend Affirmative Action

John G. Roberts, Jr.:

We will hear argument next today in Case 12-682, Schuette v. The Coalition to Defend Affirmative Action.

Mr. Bursch.

John J. Bursch:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a Michigan constitutional provision requiring equal treatment violates equal protection.

And for two reasons, the answer is no.

First, unlike the laws at issue in Hunter and Seattle, Section 26 does not repeal an antidiscrimination law.

Instead, it repeals preferences and thus, it's an impediment to preferential treatment, not equal treatment.

Sonia Sotomayor:

Holt had nothing to do with an antidiscrimination law.

It had to do with a remedy, defective segregation.

Why isn't this identical to Seattle?

John J. Bursch:

Justice Sotomayor, it's not identical because of the remedy issue.

In Seattle, they were trying to create, in the court's words, equal educational opportunity by imposing a remedy that would result in equality in the schools.

Sonia Sotomayor:

You don't think that the proponents of affirmative action are attempting to do the same thing?

One of the bill sponsors here said that this constitutional amendment will bring back desegregation in Michigan, and it appears to have done just that.

John J. Bursch:

Well, there's two points to that question and I'll address them both.

First on the merits, under Grutter, the point of preferences in university admissions cannot be solely the benefit of the minority, because under Grutter, it's supposed to benefit the campus as a whole through diversity, and which we think is a laudable goal.

It's a forward-looking action, not a backward-looking action, to remedy past discrimination.

And we know that because under Grutter, you can use preferences whether or not there's de facto or de jure segregation, simply to get the benefit.

But with respect to your -- your point about the University of Michigan and what has or has not happened here, two thoughts on that.

First, we have the statistics that we discuss in our reply brief where it's not clear that -- that the diversity on Michigan's campus has gone down.

But our main point on that is -- is not those numbers, but the fact that there are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways.

For example, we know that--

Sonia Sotomayor:

I thought that in Grutter, all of the social scientists had pointed out to the fact that all of those efforts had failed.

That's one of the reasons why the -- I think it was a law school claim in Michigan was upheld.

John J. Bursch:

--Well, there's social science evidence that goes both ways.

But I want to focus on the University of Michigan because there's two things that they could be doing right now that would get them closer to the race-neutral goal.

The first thing is that they could eliminate alumnae preferences.

Other schools have done that.

They have not.

That's certainly one way that tilts the playing field away from underrepresented minorities.