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Michigan's race case tests the rights of the majority

By CASS R. SUNSTEIN

Publication: The Day

Published October 21. 2013 4:00AM

The Supreme Court heard arguments this week in a major but misunderstood affirmative-action case in Michigan. The central issue isn't whether affirmative action is constitutional. It involves the permissible uses of state ballot initiatives.

For more than 30 years, members of the court have debated this question: When, if ever, are public institutions allowed to create race-conscious programs intended to help members of racial minority groups? Some justices believe that the Equal Protection Clause requires color-blindness. In their view, universities may not favor black applicants, even if the goal is to promote diversity in the classroom.

Other justices believe that the Equal Protection Clause was designed to forbid discrimination against members of minority groups, and not to forbid public institutions from taking steps to overcome a history of discrimination, or to add diversity to institutions that could benefit from it.

The court remains divided about the legitimacy of affirmative-action programs. As the law now stands, the Constitution prohibits rigid racial quotas, but it allows universities to consider race in their admissions decisions, at least if the aim is a more diverse institution and if race-neutral policies can't promote that goal. Last June, the court essentially affirmed that complex principle.

The Michigan case raises a different question.

The issue in Schuette v. Coalition to Defend Affirmative Action isn't whether the Constitution allows public institutions to take race into account. It is whether the Constitution allows the voters of Michigan to prohibit preferential treatment in education, government employment and public contracting. In 2006, Michigan voters, by 58 percent to 42 percent, amended the state constitution to do precisely that.

In general, everyone agrees that states may control the practices of public universities. If a state wants to ban such universities from having equestrian teams, or from discriminating on the basis of sexual orientation, it is permitted to do so. So Michigan is asking: Why can't our voters decide that affirmative-action programs aren't in the state's best interest?

Two Supreme Court decisions, neither involving affirmative action, suggest a potential answer. In 1969, the justices were confronted with a referendum that suspended the operation of a local fair-housing ordinance and that required any such ordinance to go through a special approval process. The court said that the referendum was "an explicitly racial classification treating racial housing differently from other racial and housing matters." The classification imposed unusual obstacles on those seeking to use the law to protect against discrimination. Because it "places special burdens on racial minorities within the government process," the court concluded that the referendum was invalid.

In 1982, the justices invalidated a state ballot initiative that barred school boards from requiring students to attend schools not nearest (or next nearest) to their place of residence. The purpose of the initiative was to reduce what its proponents saw as unjustified "busing" to produce racial balance. The court said that under the Constitution, the government could not restructure the political process "by explicitly using the racial nature of a decision to determine the decisionmaking process." In forbidding school boards from doing what school boards are usually authorized to do, the initiative imposed "substantial and unique burdens on racial minorities."

Do these precedents mean that Michigan voters may not outlaw affirmative-action programs? A divided lower court thought so. It insisted that under the Supreme Court's precedents, "the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to the minority."

With its statewide pronouncement, reordering the political process in a way that burdens racial minorities, the state's ballot initiative "rigged the game" so that the majority could "reproduce its success indefinitely."

In light of the Supreme Court's precedents, the argument isn't without force, but as this week's oral argument suggests, the issue is far from simple. True, the court has struck down initiatives that created obstacles to efforts to produce equal treatment. But Michigan believes that its initiative will promote equal treatment by preventing preferential treatment. Far from treating one group differently from another, Michigan argues that it is prohibiting universities (and others) from doing exactly that.

Whether or not Michigan's argument is convincing, it is relatively narrow. The state is insisting on the power of its voters, through a ballot initiative, to forbid what they see as discriminatory practices on the part of its universities.

Even if the court accepts the state's argument, it is unlikely to address the larger question of whether and when the Constitution itself prohibits affirmative action. Having no need to answer that question, the justices will almost certainly leave it for another day.

Cass R. Sunstein, the Robert Walmsley University professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs.

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