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Does a Mich. amendment prohibiting affirmative action violate equal protection?

October 15, 2013 at 12:00 AM EST
The Supreme Court heard arguments on whether Michigan voters can pass a law that prohibits racial preference in college admissions. Gwen Ifill gets background from Marcia Coyle of the National Law Journal, plus views from Lee Bollinger of Columbia University and Joshua Thompson, an attorney with the Pacific Legal Foundation.
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GWEN IFILL: The debate over affirmative action returned to the Supreme Court today, this time in the form of a challenge to a Michigan law that would ban its use at public universities.

We begin our coverage with NewsHour regular Marcia Coyle of The National Law Journal, who of course was in the courtroom today, as always, Marcia.

(LAUGHTER)

GWEN IFILL: Was this challenge today really about affirmative action or was it about the process that Michigan used to try to ban it?

MARCIA COYLE, The National Law Journal: It was really about the process, but first a little context.

Affirmative action is constitutional, but the Supreme Court has severely restricted its use. It has said that when government uses affirmative action or racial preferences, it must have a compelling interest for that and they must be narrowly tailored to achieve that interest.

One of the uses that the Supreme Court has upheld as a compelling interest is diversity in higher education. So, this case, as it comes to the court, is a little different from the cases we have talked about in the past.

GWEN IFILL: In 2003 and 2006 involving Michigan before and Texas before.

MARCIA COYLE: Right, again.

Yes, that was to how those universities were using racial preferences. This case is about whether voters can pass a constitutional amendment to their state constitution prohibiting the use of racial preferences.

GWEN IFILL: Take us inside the courtroom. Justice Sotomayor said that this would take away a tool for universities to achieve diversity.

MARCIA COYLE: Right.

The theory here, Gwen, the lower federal appellate court said, was that, by passing this amendment, the voters had restructured the political process within the university to the disadvantage of minorities, and the only way to really explain that is sort of a hypothetical. Say I graduate from the University of Michigan and I want the university to give preferences to my children and the children of other graduates.

I can go and I can lobby the president, I can lobby the board of regents to make that change in policy. But if I’m in a minority and I want the university to give a preference on the basis of my race, I can’t do that. I have to change the Michigan constitution before I can even approach them.

So this, the lower appellate court said, was rigging the political process, and that violates equal protection.

GWEN IFILL: What is the difference between preference for legacy alums and preferences on race? Is it singularly about race?

MARCIA COYLE: It is about race and the Equal Protection Clause.

In the arguments today, the Michigan solicitor general, defending the voters’ amendment, said basically the Supreme Court has never said you must use affirmative action or racial preferences. It has invited people to someday get beyond the use of race. And that’s what Michigan voters were trying to do here, get beyond the use of race and tell universities adopt race-neutral means of achieving diversity.

GWEN IFILL: And Justice Roberts expressed some sympathy for the idea that this was a violation of the Equal Protection Clause.

MARCIA COYLE: Well, Chief Justice Roberts said, the equal protection, if it — if the Equal Protection Clause is designed to take race off the table, what is wrong with voters taking race off the table?

Well, the response to that by those who oppose this amendment, Mark Rosenbaum of the ACLU, explained that what the voters created here were two separate playing fields, unequal playing fields, and what they want is one playing field, one that doesn’t disadvantage minorities on the basis of race or gender, which also is in the Michigan constitutional amendment.

GWEN IFILL: So this is not unique to Michigan, though, this approach?

MARCIA COYLE: No.

In fact, California has almost an identical amendment. And I believe there are at least six other states that, while not maybe adopting constitutional amendments, do not use racial preference in university admissions.

So there is concern on the part of opponents of the constitutional amendment that, if the court OKs this amendment, other states may also move quickly to take race off the table, when universities like the University of Michigan have told the Supreme Court as early as 2003 that race-neutral means have not worked and affirmative action racial preferences are a tool that they actually need. So that is one of the fears.

GWEN IFILL: Justice Kagan has — Elena Kagan has removed her — recused herself from this case.

MARCIA COYLE: Yes, she has.

And as typical in cases where she may have been involved as solicitor general of the United States, she recuses herself. She recused herself last term in the affirmative action case involving the University of Texas.

GWEN IFILL: So, if you look at the eight members left, eight justices left, and listening to their arguments today, is there any way that you can add up a fifth vote that it would take to uphold this law?

MARCIA COYLE: I think the sentiment, there is probably a majority to uphold the Michigan amendment.

GWEN IFILL: Right. I had it backwards.

(LAUGHTER)

MARCIA COYLE: I know. I tried to get it back.

I think there probably is a majority to uphold. Of course, you never know what the court is going to do. We were surprised last term in the University of Texas case when it was sent back for affirmative action to fight another day.

GWEN IFILL: OK. Well, we will see whether they go broad or narrow this time as well.

Marcia Coyle, as always, thank you.

MARCIA COYLE: My pleasure, Gwen.

GWEN IFILL: Now, for a broader look at the underlying issues in this latest affirmative action challenge, we turn to Columbia University President Lee Bollinger, who, as president of University of Michigan, was part of two previous landmark cases on racial preferences in higher education, and Joshua Thompson, an attorney with the Pacific Legal Foundation, which has defended a similar ban in California, as we were just talking about.

Welcome to you both.

President Bollinger, what did you think about this? Was this about the process or was this about affirmative action itself, these arguments today?

LEE BOLLINGER, Columbia University: It is largely about the process, as Marcia said.

I mean, I think that she described the alternatives, the opposing positions correctly. On the one side, the position is, we have said — the court says that you can have affirmative action, it’s your choice, and all the voters of Michigan have done is to take this off the table.

The other position is that there have been a couple of cases in the Supreme Court, the Seattle case in particular from the early 1980s, where the court has said, if you take something involving race, an issue involving race, and you make it especially difficult or impossible basically for that to be resolved in the political process, that raises deep equal protection concerns.

I think one of the striking things here is that Justice Kennedy, who probably will be the swing vote in this, was especially concerned in the oral argument in his questions with the Seattle case as a precedent for this. So that’s the issue in the case.

GWEN IFILL: Joshua — Joshua Thompson, what’s your sense of what — the issue in the case? You have been involved in these kinds of voter initiatives before.

JOSHUA THOMPSON, Pacific Legal Foundation: Yes.

Pacific Legal Foundation, where I work, defended Proposition 209 in both the California Supreme Court and the Ninth Circuit Court of Appeals on challenges that were basically identical, trying to say that the political process is being restructured by these amendments that ban race-based preferences.

I agree generally with the consensus here that it is about structure and how the political process was or wasn’t altered. My belief is that you do not violate the Equal Protection Clause by banning racial preferences. In other words, the Equal Protection Clause was designed as a measure to end racial discrimination and preferential treatment.

What the Proposal 2 does and Proposition 209 in California does is, it fulfills that promise by prohibiting outright the use of racial classifications in government decision-making.

GWEN IFILL: So, does this go at all to the issue that Marcia mentioned? And I will ask Lee Bollinger this right after you answer it, which is that this about racial preferences, rather than legacy preferences, that it doesn’t address another issue?

JOSHUA THOMPSON:  That is certainly the argument that was put forth by the proponents — or the opponents of Proposal 2.

And my response to that is that we have a long history in this country of why we treat racial matters differently. We have a history of knowing that distinctions on the basis of race are divisive, they are generally abhorrent, and we want the Supreme Court and we want our constitutional rights to generally prohibit such racial classifications.

And what Michigan voters did here is they said under no circumstances will we allow our government to make distinctions on the basis of race.

GWEN IFILL: Lee Bollinger, your read on that?

LEE BOLLINGER: Well, I think that you have to start with a different kind of framing of the issue.

So, as soon as you say racial preferences, you immediately characterize the admissions process at universities and colleges all across the country in a way that distorts what actually has happened over the past 30, 40 years.

I mean, virtually all universities in the United States, just like all institutions, corporations, media, the military, have since Brown vs. Board of Education tried to be more inclusive in their institutions, and also tried to realize the promise of Brown vs. Board of Education and the promise of the Equal Protection Clause, which is not only to stop segregation and discrimination, but also to achieve a more integrated society and one that really benefits, takes full advantage of that diversity.

So, when you look at admission processes, there are lots of so-called preferences going around. We call them factors, people from different parts of the country, people internationally, athletes, legacies, people with all different kinds of talents. And racial and ethnic diversity is simply one among many things that we try to do to try to have a very rich student body that reflects the array of the human population.

And, in that, you really get a better educational experience, while also helping the society achieve the great promise of Brown vs. Board of Education.

GWEN IFILL: Joshua Thompson, is there even an achievable race-neutral alternative to this type of action?

JOSHUA THOMPSON:  I believe there is.

I believe states across the country have shown that you can achieve very high levels of racial diversity through race-neutral means. And although that may not be the goal, it may be to achieve a diversity of perspective, things like socioeconomic preferences or scholarships to low-income areas, or, as Texas did last year in the famous Supreme Court case, is, they added a top 10 percent law, which allowed anybody that graduated in the top 10 percent of their high school class…

GWEN IFILL: But the court said, you got to narrow that.

JOSHUA THOMPSON:  The court didn’t — didn’t — didn’t speak to the constitutionality of the top 10 percent law. What they said is that the University of Texas’ use of race has to be cabined when — with the knowledge that the top 10 percent law was achieving such great levels of racial diversity.

GWEN IFILL: What about that, President Bollinger? Is it possible that there are other ways of achieving the same goals which are not explicitly about race?

LEE BOLLINGER: So, Josh is right that, in the Fisher case, the 10 percent solution that Texas had followed wasn’t really at issue.

But there’s a very sharp disagreement with the other things that he said. So, looking at socioeconomic status and trying to help children from low-income families to get into college and elite schools is something we all agree with and work very hard on and really achieve.

But you just cannot get — there’s been a lot of scholarship on this — you cannot achieve the racial and ethnic diversity that we also want as part of these student bodies by simply focusing on socioeconomic status. So that’s just the reality.

The 10 percent solution that Texas adopted was only after a decision in the Fifth Circuit in the ’90s before the Grutter case that struck down affirmative action in Texas. And because there’s a de facto segregated high school system in the state of Texas, they so wanted to have diversity still that they adopted a 10 percent — top 10 percent of every high school in the state gets to come to the university.

GWEN IFILL: But is the handwriting on the wall at the Supreme Court your argument?

(CROSSTALK)

GWEN IFILL: I’m sorry. Is the handwriting on the wall now that argues against your approach at the Supreme Court?

LEE BOLLINGER: I don’t think so.

I mean, what we have are a series of precedents now, from Bakke and Powell’s opinion to Grutter to really the Fisher case, which reaffirmed all of this, that’s very strong, very strong on all of this. So I’m not at all really doubtful about the continuing validity of the policies.

GWEN IFILL: Joshua?

JOSHUA THOMPSON:  I would say that the writing is on the wall by the states that have adopted measures like Proposal 2, California beginning in 1996, and Michigan in 2006, Washington, Nebraska, Oklahoma, Arizona.

These states have shown that the people by and large do not like racial preferences, and so long as the Supreme Court upholds their decision to ban those preferences, voters will do so.

GWEN IFILL: That will have to be the last word.

Joshua Thompson of Pacific Legal Foundation, Lee Bollinger, president of Columbia Michigan, thank you both very much.

JOSHUA THOMPSON:  Thank you.