I hope everyone had a great MLK Day this year. I like to imagine that in lieu of going to work on MLK Day, people all over the country spend an hour or so at a coffee shop, bar or even at the kitchen table discussing (at least thinking about) racial diversity. Towards that end, I have an annual MLK Day tradition of writing about a racial issue. This year, since SCOTUS is considering the constitutionality of Michigan’s ban on affirmative action, I planned to post an imagined coffee house conversation between the lawyers arguing Schuette v. Coalition to Defend Affirmative Action. But when MLK Day arrived, I couldn’t resist weighing in on the “Richard Sherman is a thug” controversy.
But the wait is over, I now give you the coffee house conversation between the lawyers involved in Schuette. The arguments below are mainly pulled from the briefs the lawyers filed1 (but are paraphrased and edited significantly to not be boring fit into a coffee house conversation).
LARRY2: John! How are ya? Good job on your argument in Schuette.
JOHN: Hey Larry. Thanks. You too, what was that, four months ago now?
LARRY: October 15th.3 It doesn’t seem like it was that long ago.
JOHN: I know. I can’t tell you how often I get questions from people wanting to know whether SCOTUS is going to ban affirmative action.
LARRY: I hear ya. It’s kind of a challenge to explain to people that Schuette is not about whether affirmative action is constitutional.
LARRY: Whoa. I wouldn’t put it that way. This case is really about whether Michiganders can entrench racial discrimination in their state constitution.
JOHN: That’s ridiculous. Affirmative action is a form of discrimination, since white people are usually discriminated against. In 2006, the people of the state of Michigan amended their constitution to prohibit discrimination—a/k/a “granting preferential treatment”—in public education, government contracting and public employment based on race, sex, ethnicity or national origin. Some groups of Michiganders who support the type of discrimination that favors underrepresented racial groups in university admissions then brought this lawsuit, arguing that the 2006 constitutional amendment violates the federal Equal Protection Clause. But it simply does not make sense to say that a law that requires equal treatment violates the Equal Protection Clause.
LARRY: That argument sounds good, but it misses the real point, which is that Michigan’s constitutional amendment skews the political process, making it particularly difficult for advocates of racial preferences to achieve their desired results.
JOHN: But there’s nothing wrong with that!
LARRY: There is, though. There are 15 public universities in Michigan, but let’s use the University of Michigan as an example. Before the 2006 constitutional amendment was passed, UofM’s Board of Regents had complete power to establish policies for the university. The members of the board were directly elected and were politically accountable to the people of Michigan. Advocates of particular policies (such as affirmative action in admissions) used to be able to lobby members of the Board of Regents if they wanted to see a change of policy. But the 2006 constitutional amendment changed that. The amendment took the specific issue of race and sex based admissions preferences and removed it from the political process. By enshrining a “no affirmative action” law in the constitution, Michigan made it impossible for advocates of affirmative action programs to lobby in support of them.
JOHN: Again, there’s nothing wrong with that. Michigan should be able to make that choice.
LARRY: Because it creates an unequal political process based on race. An applicant who believes that she should receive preferential treatment in UofM’s admissions process based on her family’s alumni connections, her experience as a member of a Christian service group or the fact that she lives in Michigan’s Upper Peninsula can advocate for those preferences to the Board of Regents. But if another applicant believes that she should receive preferential treatment because she could enrich the diversity of UofM’s campus environment and bring an important perspective to campus because she is an underrepresented minority, she would have no choice but to undertake the far more onerous process of amending the state constitution. That creates an inequality based on race.
JOHN: But this hypothetical student is seeking unequal treatment. Michigan banned that unequal treatment. How could that possibly violate the Equal Protection Clause, which requires equal treatment under the law?
LARRY: Well, let’s remember that the Equal Protection Clause doesn’t ban all unequal treatment based on race. Governmental entities (such as public universities) can use racial classifications in admissions as long as the classifications are narrowly tailored to serve a compelling governmental interest. That’s why the Supreme Court held in the Grutter case, back in 2003, that UofM could sometimes use race as a factor in admissions. Michigan’s 2006 constitutional amendment bans those racial classifications that the Supreme Court said were okay in Grutter. So, Michigan’s constitutional amendment is not a restatement of the federal Equal Protection Clause. Michigan’s amendment bans conduct that is not banned by the federal Equal Protection Clause.
JOHN: True. But Michigan should be able to do more than just meet the minimum requirements of the Equal Protection Clause. Michigan should be able to decide to be better than the rest of the country. That’s what it did here. The people of Michigan decided that they don’t want any racial distinctions to be used in the admissions process in their state, even if those distinctions do not violate the Equal Protection Clause.
LARRY: What you call extra protection, I call discrimination against minorities.
JOHN: How is it discrimination? Michigan’s constitutional amendment bans discrimination!
LARRY: The amendment bans preferences based on race, but allows basically all other preferences. That distinction discriminates against the people who would benefit from racial preferences: racial minorities.
JOHN: [Sighing] It looks like I’m going to need another cup of coffee to talk some sense into you. Want one?
LARRY: Sure. We have all day. You have MLK Day off right?
JOHN: Of course. Doesn’t everybody?
Here is Part II of our coffee house conversation about Michigan’s constitutional ban on affirmative action, when John and Larry are joined by a special guest!
1. The actual brief of John J. Bursch can be found here.
The actual brief of Laurence H. Tribe can be found here.
The actual brief of Michael E. Rosman can be found here.
The actual reply brief of John J. Bursch can be found here.
2. I use informal names for the attorneys throughout this post to simulate an informal environment. Larry is Laurence H. Tribe. John is John J. Bursch. Mike is Michael E. Rosman. I have no idea whether these attorneys actually use these nicknames, and I mean no disrespect by using them.
3. The transcript of the 10/15/13 oral arguments can be found here.
4. The Sixth Circuit’s Opinion was a 6-5 decision.