RACE-BASED PREFERENCES: SHOULD THE
MAJORITY VOTE DECIDE?
For many years, critics have attacked the University of
Michigan’s admissions process for using race-based preferences. In
2003, the Supreme Court of the United States considered the
constitutionality of two of the University’s admissions processes in
Gratz v. Bollinger1 and Grutter v. Bollinger.2 In Gratz, the Court
invalidated the undergraduate program’s policy because it violated
the Equal Protection Clause of the United States Constitution;3 in
Grutter, it upheld the law school’s more limited use of race-based
preferences in its admissions policy.4 Recently, in Schuette v.
Coalition to Defend Affirmative Action (CDAA) the Court held in a
plurality opinion that Michigan’s voter-approved ban on affirmative
action is constitutional.5
In 2006, Michigan voters passed Proposal 2, a constitutional
amendment that attempted to resolve some of the issues raised by the
Gratz and Grutter opinions.6 This amendment, now Article I, §26 of
the Michigan Constitution, states, in part, that state institutions “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.”7 The amendment prohibits public
entities, including universities, from using affirmative action.
CDAA was a consolidation of two lawsuits filed against the State
of Michigan in response to that amendment.8 In 2008, the United
States District Court for the Eastern District of Michigan upheld
Proposal 2, holding that the amendment did not have a discriminatory
purpose and therefore did not violate equal-protection rights.9 The
United States Court of Appeals for the Sixth Circuit reversed this
decision, concluding that Proposal 2 violated the principles of
1. 539 U.S. 244 (2003).
2. 539 U.S. 306 (2003).
3. Gratz, 539 U.S. at 275.
4. Grutter, 539 U.S. at 343.
5. 134 S. Ct. 1623, 1638 (2014) (Kennedy, J., plurality opinion).
6. Id. at 1629.
7. MICH. CONST. art. I, § 26.
8. Coal. to Defend Affirmative Action, at 1629–30.
9. Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F.
Supp. 2d 924 (E.D. Mich. 2008).
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THOMAS M. COOLEY LAW REVIEW[Vol. Online:Trinity
Washington v. Seattle School District No. 1.10 The Supreme Court
granted certiorari and focused its analysis on “whether . . . voters in
states may choose to prohibit the consideration of racial preferences
in governmental decisions, in particular with respect to school
admissions.”11
The Court examined the precedential value of the politicalprocess doctrine, first introduced in Hunter v. Erickson12 and further
applied in Seattle.13 The political-process doctrine generally states
that laws are subject to strict-scrutiny review when they restrict a
historically disadvantaged group of people’s ability to change laws
that place them at a disadvantage.14 This theory is grounded in the
idea that, historically, certain disadvantaged groups have been denied
full access “to participate meaningfully in the political process.”15 So
strict scrutiny requires laws that affect the political process to be
narrowly tailored to achieve a compelling governmental interest; the
government has the burden to establish the appropriate interest and
fit.16
In Hunter, the City of Akron enacted a fair housing ordinance to
prohibit racial discrimination.17 The voters amended the city charter
to overturn the ordinance and to require future ordinances of the kind
to be approved by referendum.18 Because this would have made it
more difficult for minorities to obtain housing in certain areas and to
change the law prohibiting them from obtaining equal housing, the
court invalidated the amendment to the city charter.19
Similarly, in Seattle, the school board adopted a mandatory
busing program to increase integration of schools and the voters
responded by passing a state initiative that barred the busing
program.20 The Court invoked the political-process theory against
laws which made it harder for minorities to get antidiscrimination
10. Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 652 F.3d
607 (6th Cir. 2011).
11. Coal. to Defend Affirmative Action, 134 S. Ct. at 1630.
12. 393 U.S. 385 (1969).
13. 458 U.S. 457 (1982).
14. Id. at 1632.
15. Coal. to Defend Affirmative Action, 134 S. Ct. at 1650.
16. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985).
17. Hunter, 393 U.S. 385.
18. Id. at 389–90.
19. Id. at 391–93.
20. Seattle, 458 U.S. at 461–62.
2014]
SCHUETTE V. CDAA
3
laws passed.21 But here the amendment made it more difficult for
minorities to try to guarantee “equal protection” through affirmativeaction laws.22 Significantly, in the Seattle line of cases, voters passed
laws requiring additional obstacles to passing antidiscrimination
laws.
But the Court distinguished these cases in CDAA. In Seattle, the
Court found that the initiative’s decision-making process was racially
motivated.23 The problem with using Seattle as justification for
overturning the amendment to the Michigan Constitution is that the
initiative in Seattle “had the serious risk, if not purpose, of causing
specific injuries on account of race.”24 But Article 1, § 26 is not
designed to harm anyone; instead it is intended to return to a level
playing field and provide equality to college applicants. Preventing
race-based preferences in college admissions is not going to result in
minorities being forced to attend inadequate schools or live in
unhealthful, unsafe, or unsanitary housing.
Ultimately, the Court followed the majority-rules principle. In
direct conflict with the political-process theory, this principle
animates a republican form of government. And the separation-ofpowers doctrine requires courts to take a very limited role in
reviewing voter-enacted legislation. Because Michigan’s majority
passed Proposal 2 and the amendment was not motivated by a desire
to harm minority populations, the Court would have been hard
pressed to overturn the amendment.
Unsatisfied with the majority-rules principle, the dissent opined
that the political-process doctrine is a key constitutional limit that
prevents the majority from reconfiguring the political process into “a
two-tiered system of political change, subjecting laws designed to
protect or benefit discrete and insular minorities to a more
burdensome political process than all other laws.”25 Although the
dissent agreed that Michigan voters were free to pursue an end to
race-based preferences in the wake of Grutter,26 the dissent’s
preferred method, by electing board members to carry out that
21. Seattle, 458 U.S. 457.
22. Coal. to Defend Affirmative Action, 134 S. Ct. at 1623.
23. Seattle, 458 U.S.at 470.
24. Coal. to Defend Affirmative Action, 134 S. Ct. at 1633.
25. Coal. to Defend Affirmative Action, 134 S. Ct. at 1669 (Sotomayor, J.,
dissenting).
26. Id. at 1670.
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THOMAS M. COOLEY LAW REVIEW[Vol. Online:Trinity
change, would have made it harder, not easier, for racial minorities to
fully participate in the political process.27
Justice Scalia, in his concurrence, would have overruled
the Seattle line of cases and decided the case purely on equalprotection grounds.28 The true issue, according to Justice Scalia, was
whether “the Equal Protection Clause . . . forbid[s] what its text
plainly requires.”29 Justice Scalia would have upheld the amendment
because the plaintiffs were alleging an equal-protection violation by a
facially neutral act but could not prove intent or causation, even if
there was a disparate impact.30 But ultimately, following the Seattle
line of cases here is unwise and unwarranted because Michigan
voters did not enact the amendment to target or injure a racial
minority.31
This case is particularly important because our country is at a
turning point in its stance on race-based preferences. Minority
populations have been historically disadvantaged and have needed
some additional help getting into the positions traditionally held by
the majority. But over time, the conversation shifted to whether these
policies were still necessary to achieve their original goal of equality.
In this opinion, as in others, the Court noted that it wants this
dialogue to continue and that the conversation should take place
through the democratic process, not the court system.32
Noting that there are specific problems with resolving the issue of
race-based preferences through the court system, the Court suggested
that it would first have to define racial groups, which comes with its
own set of problems.33 Then it would have to determine what issues
are race specific in order to determine what should be removed from
voter control.34 These issues could become endless, based on what
racial groups argue is in their interest.35 The entire process would end
up causing more racial division and prejudice than most alternatives
the states could suggest.
27. Id. at 1645 (Scalia, J., concurring).
28. Id. at 1639.
29. Id. (emphasis in original).
30. Id. at 1647.
31. See Coal. to Defend Affirmative Action, 134 S. Ct. at 1638 (Kennedy, J.,
plurality opinion).
32. Id. at 1637.
33. Id. at 1634.
34. Id. at 1635.
35. Id.
2014]
SCHUETTE V. CDAA
5
Ultimately, the Supreme Court decided that Article I, § 26 was
constitutional. Further, it declined to use a broad interpretation of its
holding in Seattle, and instead it found no existing precedent to
support a decision invalidating this voter-approved amendment. This
is unlikely to be the last case regarding race-based preferences, but it
does give states, through their voters, the ability to decide how to
handle the issue.
JACQULENE BRANDT
CONTRIBUTIONS MADE BY PROFESSOR SCHINDLER