05/08/2014 12:47 pm ET Updated Jul 08, 2014

Conservative Spin Distorts Supreme Court's Recent Affirmative Action Decision

The Supreme Court's recent decision upholding Michigan's referendum vote to eliminate the use of affirmative action in university admissions was not unexpected given the Court's conservative bent and the growing dissatisfaction with the doctrine in segments of American society. What is noteworthy is the spin conservative commentators have put on it as upholding the democratic process and demonstrating the extremity of the liberal point of view.

The case, Schuette v. BAMN, challenged the voter-enacted amendment to the Michigan constitution prohibiting affirmative action. The referendum petition came in response to the policy implemented by certain university boards in Michigan of employing race as a factor in university admission. The claim in the lawsuit was that changing the political process to remove from university boards this one aspect of educational policy -- affirmative action admissions -- and assigning it to a higher level of the political hierarchy so as to disadvantage a racial minority constituted a denial of equal protection.

Much of the reaction to the decision by conservative commentators and media is illustrated by an April 24 commentary of Charles Krauthammer in which he applauded the decision as letting the people rather than the courts decide and thereby upholding the democratic process. Previous decisions of the Rehnquist/Roberts-led Court, however, have ruled that racial preferences implemented on a voluntary basis violate the equal protection clause. Race may be one of a number of factors considered in admissions, but it may not be a decisive factor, regardless of the outcome of the democratic process. By contrast, under the Schuette ruling, voters may enact bans on the use of racial preferences without fear of the Supreme Court's intervention on constitutional grounds.

Krauthammer characterizes the plaintiffs' position set forth in Justice Sotomayor's dissent as representing a "radical proposition" that not even liberal Justice Breyer could accept. All of the Justices, however, basically accepted her view that the two most analogous precedents were Hunter v. Erickson (1969) and Washington v. Seattle School District (1982). Those cases applied the political-process doctrine under which decision-making cannot be shifted to uniquely disadvantage a racial or religious minority. Whereas Justice Sotomayor called for following the Court's precedents on the political-process doctrine, Justice Scalia stated in his concurring opinion that those precedents should be overruled and he characterized Justice Kennedy's plurality opinion as repudiating the political-process doctrine.

In Hunter, the Akron Ohio City Council had passed an ordinance prohibiting discrimination in the sale, lease or financing of housing. In response, the voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. The Supreme Court found that the city charter amendment, by singling out antidiscrimination ordinances, placed special burdens on racial minorities, making it more difficult for them to achieve legislation that was in their interest. Justice Sotomayor argued that Hunter applied because the affirmative action amendment to the Michigan constitution allowed Michigan citizens to advocate their admission on any of numerous bases such as legacy, athleticism, geography, areas of study and so on, but not on the one basis of race. "For that policy alone," she said, "the citizens of Michigan must undertake the daunting task of amending the State Constitution."

The "non-radical" nature of Justice Sotomayor's position is further demonstrated by the fact that she in no way argued that Michigan could not change its policy of requiring race-conscious admission to banning it. She explained that the university board members were elected and that race-conscious admission had been an issue in campaigns for those positions. Voters could thus elect representatives who would implement their policy preference. The problem in Schuette, according to Justice Sotomayor, was that a political restructuring occurred that created "one process for racial minorities and a separate less burdensome process for everyone else." She further stated that she agreed "wholeheartedly that nothing . . . requires we remove it from the reach of the electorate."

While Krauthammer invokes the name of Justice Breyer to support the view that the plaintiffs' and Sotomayor's position is a radical one, in fact Justice Breyer in his concurrence states his continuing disagreement with the Court's majority that the electorate may not voluntarily decide to employ racial preferences where it deems it appropriate. Justice Breyer's position, not that of Justices Kennedy and Scalia, has greater claim to being "fair and balanced," while Justice Sotomayor more closely adheres to precedent. Affirmative action seemed destined to fare poorly before the Supreme Court in Schuette, but let's fairly inform the public on this important matter.