By Sara Martin
In his closing remarks to the last Constitutional Law class of the semester, my professor offered two takeaway pieces of advice for his gaggle of young would-be lawyers. First, that the Constitution is not a simple document, and thus deserves more than a facial analysis. Second, and, in my opinion, more relevant to modern discourse: not everything that is “right” or “good” is actually anywhere in there. I find the latter particularly relevant to today’s race discourse.
On Tuesday the Supreme Court handed down a surprisingly readable decision in Schuette v. Coalition to Defend Affirmative Action. The case concerned the constitutionality of Michigan’s 2006 constitutional amendment which provides that state public education facilities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The referendum on the amendment, which passed by a vote of 58% to 42%, prevents Michigan’s public schools from considering race (and sex) as part of a holistic applicant review previously held constitutional by the Supreme Court in the 2003 decision in Grutter v. Bollinger.
The 6-2 decision did not yield a majority opinion. (Roberts and Alito joined Kennedy’s opinion, with Scalia, Thomas, and Breyer concurring only in the judgment). However, even had Justice Kagan not recused herself, the court easily upheld the ban by a clear majority in an era when politically divisive issues are frequently determined by “counting to one” (Kennedy). But traditionally liberal Justice Breyer came down on the side of the Michigan voters, leaving only Ginsberg and Sotomayor dissenting in the judgment. It is unfair to consider this case another example of a “split decision” in the history of affirmative action jurisprudence.
There is one glaring omission from all the opinions that I want to put forth now: not a single one of the five opinions mentioned the fact that the law does not only prohibit discrimination on the basis of race. It also prohibits consideration of sex. This is not insignificant in light of the precedent used to uphold and challenge the amendment, but it seems to have gotten lost in the much more highly charged debate about the role of race in admissions.
The plurality opinion and Breyer took pains to make clear that the case took no position on the constitutional status of affirmative action programs. Indeed, last year, the Court reaffirmed the constitutionality of race-based admissions preferences if they are narrowly tailored to the compelling interest in achieving diversity in education. (Fischer). It is a complete misreading (more likely a non-reading) to say that the court took a position against affirmative action. It did not. Rather, the opinions of all but Scalia and Thomas (incidentally, the only black Justice) indicate the justices personally favor affirmative action, or at least see value in the process. That is to say, they think Sotomayor’s “race sensitive” admissions policies are “good,” just not the law.
What the Justices were able to do that so many of us seem unable or unwilling to do, was divorce their personal values from the law. Kennedy did his best to head off the inevitable when he wrote “Before the court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, or race-conscious admissions policies in higher education. . . The question here concerns . . . whether and in what manner, voters in the States may choose to prohibit the consideration of racial preferences.” Considering that question, and that question alone, the court held that the voters could indeed decide that race should not be considered. State and local governments are traditionally granted broad powers of self-governance, and afforded considerable latitude by the courts.
Here, the primary constitutional challenge to the Amendment arose out of a line of precedent that prohibits States from altering the political process so as to disadvantage a political minority when a policy benefiting a minority is at stake. Noting that the measure transferred control of admission decisions from a relatively electorally remote group of administrators to the voting public, the court found no such infraction, and upheld the Amendment. The court also cautioned against trying to define the boundaries of a racial group, and noted the inherent problems in Court identification of group interests (not only is it unclear what constitutes a racial group, it is also unfair to assume that every member of a racial group, however defined, has like interests). While noting the Equal Protection Clause did not invalidate affirmative action, the opinion noted that it could not mandate it. Equal Protection is a guarantee of equality to the individual, not to the group. At the end of the day, and regardless of the wisdom of their decision, the voters retain the authority to decide not to consider race in higher education admissions. Scalia and Thomas added particular emphasis to the idea that the Equal Protection Clause could not be spun so as to require what it expressly forbids—unequal application of the law.
Sotomayor filed a vehement, scathing, and spirited dissent. In addition to her disagreement with the political process analysis, she points to the low percentages of (under-represented) minority enrollment, and declines in those numbers since the Amendment took effect. She notes the historical disenfranchisement and unequal access to the political process, as well as endemic and persistent discrimination in society.
Her concerns are not misplaced in value judgment. However, Sotomayor blurs the line between what is “good” and what is “legal.” While the court must guard against abuse, it cannot direct social policy. Sotomayor’s analysis of the political process doctrine appears inconsistent. She notes that it would be fine for the regents, or the administrators to whom they delegate authority, to decide to abandon affirmative action, but that the people may not decide themselves. Furthermore, disparate impact alone does not trigger the kind of heightened scrutiny of the law she wishes to apply. And, though evidence of a discriminatory purpose behind a law may form grounds for the court to declare it unconstitutional, here there was no evidence presented of such an animus.
The court must limit itself. It cannot require states to adopt affirmative action, nor can it mandate that they not ban it in the current political climate, and in light of recent history. But the role of the Court is to evaluate the constitutionality of challenged laws, not put forth substantive law or read into the Constitution what is not there. In evaluating the laws, either of the States or Congress, the court cannot delve too deeply into potentially illegitimate motives when legitimate ones present as equally plausible. The reasons are pragmatic, if somewhat disappointing. Given the realities of the partisan system we operate under, the back room dealing, midnight-hour compromises, and electoral pandering, searching review of every real motive behind every piece of legislation would certainly leave the courts backlogged, and the nation without much left in the way of law. It is perhaps a sad reality. I suspect some of the 58% of Michigan voters were voting the blacks out of public education. But perhaps some were in line with Thomas, and feel affirmative action perpetuates racial stereotypes of inferiority. Perhaps others simply feel the time for affirmative action has passed. They may be wrong, but they are not in violation of the Constitution.