A clear majority of the U.S. Supreme Court sounded ready on Tuesday to uphold a Michigan referendum banning affirmative action in higher education. But the justices were less clear about whether they want to reverse a 40-year-old doctrine that bars changing the political process to disadvantage racial minorities.
The issue before the court was not whether affirmative action in higher education is permissible. So far, the justices have said it is. Indeed, one of the court's landmark cases upheld the affirmative action program at the University of Michigan Law School. But three years later, 58 percent of Michigan voters approved an initiative that amended the state constitution to ban such programs.
While the ban went into effect, it was challenged in court. Affirmative action supporters, contending that minority enrollment was plummeting, argued that the state constitutional amendment violated the federal Constitution by restructuring the political process along racial lines. Last year a federal appeals court agreed, and the state appealed to the Supreme Court.
Tuesday's arguments focused primarily on the "political process doctrine," which dates back more than 40 years. In two cases, the Supreme Court has held that the political structure cannot be altered to disadvantage minorities. In 1982, for instance, the justices ruled that it was unconstitutional for the state of Washington to amend its state constitution to prevent Seattle from using busing to voluntarily desegregate the city's public schools.
On Tuesday, Michigan Solicitor General John Bursch urged the Supreme Court to reverse the Seattle decision and others like it, if necessary. "Maybe the whole doctrine needs to be re-examined," he said, after a number of justices seemed unconvinced that there is a difference between the Seattle case and Michigan's.
Testing the state's argument, Justice Anthony Kennedy asked whether it would be permissible to pass a constitutional amendment requiring that all pro-affirmative action laws be approved by a supermajority in the state Legislature. Bursch replied that the court "might want to ... consider whether there's a discriminatory animus based on race," but that laws can't fall simply because they have a "racial focus."
The ACLU's Mark Rosenbaum defended the affirmative action programs as themselves democratically enacted by the governing boards, the regents, of the state's universities, who are elected by popular vote.
Chief Justice John Roberts asked whether there would be any problem "if the regents decided to revoke the affirmative action programs." That, answered Rosenbaum, would be "absolutely fine."
"So why is it different," Roberts inquired, when the "people of the state themselves make that decision?" The problem here, Rosenbaum said, is that the referendum changed the political process "from the ordinary" to "the extraordinary."
Justice Kennedy seemed dubious. "I just don't understand," he said, why the voters can't take away affirmative action but the regents or legislature can. Lawyer Rosenbaum responded that the people "have multiple options available to them" to change university policies. "The one option they don't have," he said, "is to treat racial matters different from all other matters."
Students seeking to enact or get rid of other preferences can lobby the regents, Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.
Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?
"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"
Justice Sonia Sotomayor stepped in with an answer. The line, she suggested, is "a very simple one. "The line is crossed when the political process is "changed specifically and only for race."
A decision in the case is expected by June.