Here are Part I and Part II of this conversation among the lawyers arguing the Schuette case in front of SCOTUS. Let’s pick it up where we left off:
JOHN: Well, that sure was a brief1 appearance from Mike.
LARRY: How did he find out so quickly about the new same-sex marriage opinion anyway?
JOHN: I don’t know. Probably Twitter. Everybody is Twitter crazy these days.
LARRY: Hey, Twitter is a valuable thing. Are you familiar with Being Black at University of Michigan?
JOHN: Nope.
LARRY: It’s a Twitter campaign that was started by some black students at UofM to raise awareness and serve as an outlet for problems they face at UofM. The #BBUM movement caught fire and has been picked up by other minority student populations at UofM as well. And it is having an impact. The university is working with student leaders to accommodate some of the students’ demands.
JOHN: Hmm. Good for them. Do you think there’s a relationship between the 2006 constitutional amendment and the #BBUM movement?
LARRY: I think there’s a relationship between the 2006 amendment and the need for the #BBUM movement. That’s probably a topic for another day, though.
JOHN: Agreed. Let’s get back to the primary issue: assuming the Political Process Doctrine is a valid doctrine, whether Michigan’s 2006 constitutional amendment banning affirmative action violates that doctrine.
LARRY: Yeah, we need to talk about the Seattle case.
JOHN: I hate the Seattle case.
LARRY: I know you do. But Washington v. Seattle Sch. Dist. No. 1, which was decided back in 1982, is the one case that the Supreme Court is either going to rely on, distinguish or overrule in its Schuette decision. Prior to 1982, Seattle’s K-12 schools were de facto segregated. To solve that problem, citizen groups convinced the school board to institute a bussing plan, requiring that students be bussed around the city to ensure each school had a diverse student body. Opponents of the plan were able to get a statewide initiative passed, prohibiting school boards from using bussing to accomplish racial integration. The Supreme Court held that the initiative was unconstitutional because it placed extra burdens on citizens seeking to promote race-conscious approaches. Now, the Supreme Court has to be consistent, and I really don’t see how you can distinguish the Seattle case from this one.
JOHN: It’s actually quite easy. The Seattle case did not involve a law or policy that prohibited preferential treatment. In fact, the Supreme Court has never held that a state law or policy that prohibits preferential treatment violates the Political Process Doctrine. And you’re forgetting that the text of the Seattle case itself actually brought up the possibility of the Seattle opinion later being used as an argument against affirmative action bans in university admissions. It specifically said that the Seattle reasoning would not apply in that event.
LARRY: Now that’s just not true.
JOHN: Sure it is. Footnote 23.
LARRY: Footnote 23 was talking about moving decision-making authority around within a university. That footnote basically said that the Seattle case does not prevent a university board from overruling an admissions committee decision about whether to use racial preferences. That’s different from removing the decision from the university entirely and entrenching it in the state constitution.
JOHN: [Pulling out an iPhone] That’s not what Footnote 23 said, though. You might have Twitter, but all I need is Siri. “Siri, what does Footnote 23 of Washington v. Seattle School District say?” Here it is. Footnote 23 was responding to Footnote 14 of Justice Powell’s dissenting opinion in Seattle. Powell used terms like “any higher authority” and “the people of the State of Washington,” so he was talking about more than just raising the level of decision making within a university. Footnote 23 indicated that Justice Powell’s concerns were unfounded and the Seattle decision did not apply to race-conscious admissions policies at universities. So, the Court was specifically distinguishing a case just like this one.
LARRY: Footnote 23 is not that specific. And if you read the case as a whole, the reasoning applies to this case. The state of Michigan has entrenched a racial issue—and only a racial issue—in its constitution, making it particularly difficult to ever change the policy. And that violates the Political Process Doctrine.
JOHN: Well, I still think that it makes no sense to say that the Michigan law, which requires equal treatment based on race, violates the Equal Protection Clause, which also requires equal treatment based on race. Frankly, I don’t understand why all states can’t just adopt an admissions system like Texas did. By passing a law that gives guaranteed admissions at the University of Texas to any student graduating in the top 10% of his or her high school class, Texas guaranteed a diverse class at UT without using racial preferences. The law also had the side effect of increasing high school student performance across the board, by giving students a clearly obtainable goal: make the top 10%.2
LARRY: Wow. That argument completely neglects to acknowledge the fact that Michigan and Texas are different states. Leonard M. Niehoff did an excellent job refuting that argument in his brief on behalf of UofM and Michigan State.3 As he pointed out, the top 10% idea would definitely not work at UofM. For starters, most of UofM’s highly competitive programs are graduate programs, which are far too small and specialized to use a percentage-based admissions system. But even limiting use of a percentage plan to undergraduate admissions at UofM wouldn’t work because many academic programs place a heavy emphasis on particular talents. Art, architecture, design, music, theater and dance are all internationally acclaimed programs at UofM, which obviously could not admit students solely based on their position in the top 10% of their high school classes.
JOHN: Okay, well, Michigan would have to tailor a percentage plan to the needs of its universities, but I don’t think you can argue with the positive results achieved in Texas.
LARRY: Of course I can. Again, Lenny’s brief addresses that issue. Even if it’s true that Texas’s percentage plan correlated to higher high school student achievement in terms of test scores and GPAs in the state, that doesn’t necessarily make it a good plan. Percentage plans give students an incentive to focus exclusively on grades, ignoring other valuable experiences like leadership opportunities, particularly challenging courses and volunteer opportunities.
JOHN: Well, the point might be moot in a year or so, anyway. I’m guessing the Fischer case—involving the University of Texas’s admissions program—will be back in front of the Supreme Court. This time, I think the Court will strike down the use of race in college admissions altogether.
LARRY: Well, I’ll look forward to having the Fischer debate again with you next year, but for now, we’ll just have to wait and see what the Court has to say about this Michigan law, probably in May or June.
JOHN: Fair enough. Listen, it was good talking to you, but I need to get going. I’m out of coffee, anyway.
LARRY: Alright. We should do this again sometime, though.
JOHN: Definitely. See you at the annual super-secret SCOTUS attorneys’ awards ceremony.
LARRY: Wait, does that exist?
JOHN: No. I just made it up. But it should!
LARRY: It definitely should. It could be hosted by Tom Goldstein and Amy Howe.
JOHN: They could give out awards for “best brief,” “best oral argument,” and “best suit worn by an advocate.”
LARRY: Hahaha. This needs to happen.
JOHN: Definitely. Alright. Take it easy, Larry.
LARRY: Later.
Footnotes:
1. Anybody catch the pun?
2. See page 35 of Petitioner’s brief (which can be found here) to read this argument in a greater context and for corresponding citations.
3. Who else thinks I should have come up with a contrived way to have Lenny just randomly wander into the coffee house and join in on the conversation?
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