Let me break
down the main ideas of both the majority and the dissenters so as to avoid
any misconstruction of my analysis or to allow any hyperbolic
oversimplification of what I have to say.
Main arguments:
- Whether voters can EVER remove racial preference policies in the university admissions process.
- Whether that reversal can EVER be a valid political process OR whether de facto segregation is present whenever a reversal occurs because it burdens the minorities who were disadvantaged at the time of the original admission policy's creation.
- Whether NOT using a racial factor in an admissions policy places a special burden on certain races.
- Whether it is possible to change an admission process through democratic means.
- Whether or not Supreme Courts "are fooled" when political processes are altered that disfavor minorities as found verbatim in Sotomayor's dissent (2).
Recently, the Supreme Court decided an important case about the
issue of admissions policies based on race. Schuette v. BAMN concerns the legality of using race factors in admissions. Specifically, the Michigan voters approved a law removing race as a consideration for admission to undergraduate colleges. Lower courts reversed this law as violating the political process doctrine. This process is used to determine if changing a law can lead to negative impacts on certain groups of people. Because the law's reversal would take away race as a factor, the Sixth Circuit reasoned that this would put an undue burden on racial minorities whose access to university admissions would be affected. The Supreme Court struck the law down as unconstitutional.
However, they narrowly reversed the lower court's decision and stated that there was no reason to overturn the democratic decision of voters because there was no instance of blatant segregation to favor one group over another. Basically, the majority's view is that they are unable to force a population to include race as a factor and the democratic process is not itself automatically suspect when it addresses racial issues if no instance of a violation of equal protection occurs. If voters can NEVER decide issues related to race, because they can never reverse a race-based policy and only courts can, then the value of "democracy" in America is diminished.
Democracy and Race
People
exercise democratic principles and may bypass public officials.
In her dissent, Justice Sotomayor believes that people have many opportunities to express
themselves politically, but if they oppose a policy of ending racial
preference, they can never have that viewpoint become ensconced in law
by popular vote. She believes that violates the "political process
doctrine," which by extension from her opinion forever keeps racial preferences.
However, the main issue resolved by the majority is that the Michigan law does not inflict
injury on those previously preferred (4). The key question goes back to Hunter v. Erickson, Mayor of Akron, et al. in 1969. Courts must use a different approach when looking at political decisions that are nonneatural or having a racial element. The question is whether the Michigan law is nonneutral. I believe that no racial preferences is neutral and that secondary effects of that change do not constitute segregation or legal racism.
As precedent, Hunter barely applies to the Schuette case. Sotomayor places too much emphasis on this precedent. In Hunter,
the City Council of Akron passed laws to desegregate housing. They
were elected officials who passed through the political process and were
seeking relief for minorities adversely affected by discrimination
(Kennedy 7). However, voters passed an amendment to overturn the
ordinance that would desegregate, which then altered the process so that
similar laws could not be passed again. This manipulation of the
process had discriminatory intent and was declared unconstitutional
because it changed politics.
The Hunter case overturned the voters opinion NOT because voters could never change the law in racial matters, but because the supporters of the amendment had created a law with the specific intent of targeting minorities. Elected officials had acknowledged the unfair and discriminatory practices of landlords and acted. By overturning that action to perpetuate inequality, the amendment was unconstitutional because it violated equal protection. Another way of summarizing it is that removing the authority to address a racial problem has practical effects. That may lead to a special burden on a minority group, which means the public can't take away the authority to address a racial problem from existing decisions. It also means that advocates must seek relief for a denied service. The most abstract implication is that demonstrated injury as a result of a change policy because of state encouragement or participation means that a racial problem could be made worse (Kennedy 7).
Seattle School District
Another key precedent to this case was Washington v. Seattle School Dist. No. 1, 458 U. S. 457.
Then, it was decided that one level of government cannot take away authority from another part of government to resist desegregation IF the desegregation policy is still deemed necessary to achieve equal justice and integration (4). The NAACP sued a school board in Seattle, Washington. Seattle responded with the court-mandated "Seattle Plan," which used busing and mandatory reassignments to reduce racial imbalance (Kennedy, 9). A state initiative seeking to overturn the Seattle Plan was determined to be unconstitutional. Busing students to achieve racial balance was a valid remedy (Ken 10.). Passing a law to overturn a legitimate remedy is unconstitutional. Therefore, even a democratic initiative can be unconstitutional if it violates a court specified remedy.
As a precedent, Seattle seems to favor Sotomayor's line of reasoning as a democratic initiative was struck down because of the burden it placed on minorities that had successfully sought relief. However, Sotomayor misreads Seattle as much as she accuses the majority of doing the same. Unlike Seattle and in Shuette, remedial action in college admissions policies required "a showing of de jure segregation," meaning specific actions that Sotomayor calls "invidious" and a "reallocation of power whose practical effect was condemned in Hunter" (Sotomayor 14).
Kennedy rejects this broad reading of Seattle
because there is no principled limit, no principle requirement for the
court to determine the interests served by political policies of a
specific racial group according to Seattle (Kennedy 11). Using the
broad interpretation would allow "the creation of incentives for those
who support or oppose certain policies to cast the debate in terms of
racial advantage or disadvantage. He believes this furthers "racial
antagonisms and conflict (Ibid). Seattle could be used
expansively to gain benefit or even that certain interest groups could
demand an equal protection ruling where decisions could be kept from
voter review or participation simply of the possibility that a decision
could be made on race" (Kennedy 13). In the end, Kennedy decides that
voters must be given the power to determine IF race-based preferences
will be adopted and the court may "not dis-empowers the voters from
choosing which path to follow" (Ibid). Maybe they will vote for
race-based preferences. But, the court can't overturn that unless a
violation exists.
Kennedy also strikes at Sotomayor's assertion that
the voter's decision should be overturned. He states that Hunter and
Seattle are not valid precedents, therefore rejecting Sotomayor's claim
that the majority violates stare decisis (Kennedy 10). He
rejects the precedent that in this case the government can be
instructed not to follow a course that defines racial categories and
then one that grants special consideration to some races and not others
(Kennedy 18). Voters thought such a categorization and preference
system was unwise.
The Hunter-Seattle cases "direct courts to determine whether
the challenged act "places effective decisionmaking authority over the
racial issue at a different level of government"" (5). Kennedy also
exposes a contradiction in how courts have made decisions because states
get almost limitless sovereignty as to how their states are
structured. Individuals still have the ability to participate in
meaningful political processes regardless of race. In fact, Kennedy
argues that this idea doesn't even apply because voters were given the
ability to decide and opponents of the law had the ability to engage in
meaningful political engagement to stop it. The Court can't invalidate
15 years of state public debate on this issue, nor can they pick and
choose which policy interests are at stake with regard to the
constitutionality of laws forbidding racial preference (Kenn. 15). They
failed, and it is against precedent to take away a mandate just because
that outcome was not what the opponents wanted. Therefore, Seattle and
Hunter do not apply (6). According to Kennedy, no precedent exists
that limits racially disproportionate impacts (5).
This opinion is contrary to Sotomayor's characterization of the majority opinion that there was a transfer of discrimination across populations simply because a majority of the population changed its mind. If that range has a racial component, then the court must scrutinize that decision. The question remains if any state can address a racial problem by creating laws to remedy discrimination and create a law that helps one race. If the state is given the power to remedy a situation, can the state EVER reverse its view of the state of race amongst the people it represents?
To contradict Sotomayor, Kennedy wrote that those changes involved moving the ability to make a decision around the levels of government so that a racial preference could be established (for whites, against minorities). In Schuette, unelected officials used race in admissions as one factor. The Michigan law reversed the ability of these officials to use race. The electorate is not too sensitive to handle the debate of complex issues like racial preference in the admissions process (Kennedy 16). Furthermore, he argues that you can't simply take an issue out of the hands of voters just because you don't trust their result. That, he argues, goes against the country's democratic principles.
"Race-Neutral Laws"
Race-neutral laws CAN be created in states if
they do not actively create discriminatory practices. Kennedy wrote
that one BROAD interpretation of equal-protection, like that found in
Justice Sotoymayor's dissent, is unhelpful and can actually lead to more racial problems. Some laws can have language that
appears neutral, but when put into action, it can have adverse racial
effects. He and past courts categorically rejected that precedent
because laws must show discrimination or the intention of it (5). In Schuette v. BAMN,
opponents of the law were unable to prove that voters intended to discriminate against
minorities by altering the Regents board process and rules so race was
no longer considered a factor in college admissions. Basically, one
cannot claim that a law violates equal protection only to remove equal
protection from others.
While the reasoning of the
majority in the case may not be perfect, the decision was also NOT a
reversion to the principle of "separate but equal" or the legal segregation as found in the 1896
case of Plessy v. Ferguson. That leap of rhetoric is
anachronistic as it assumes the same level of racism of institutions still exists comparable to over a hundred years ago in areas predominately in the South. It does a disservice to those who might be convinced that
there are factors which disproportionally affect minorities and keep
them from attending college at a number consistent with whites. This
slippery slope fallacy has found its way to Justice Sonya Sotomayor's dissent. She assumes an outcome, a return to segregation, from the propositions provided and automatically suspects race to be a factor in changes to the admissions policy. She also implies that any equalization of minority and majority rights
in the political process is a deceptive practice on the part of the
majority. But, I believe she is mistaken.
Justice Kennedy and the majority more correctly assess the historical precedent set. If judges can invalidate any law relating to race, even one that removes a race preference policy, then no democratic decision can be made concerning race at all. In 2014, Michigan is not a region targeted for the kind of remedial efforts to break segregation in the South in the 1950s. States with a history of actively integrating students should be able to make judgements about their laws especially if there is no blatant discrimination that results.
Whether or not minorities will be affected in college is not the issue. What is important is the ability of voters to engage in democracy even if their decisions are not universally accepted. We engage in political debate not for some purposeless talk, but to find solutions to problems in a more orderly way than mudslinging or outright violence. "American democracy" works best when we thoughtfully consider the implications of words, our abstractions, and recognize that even when discussing complex issues like race, where real injustices have occurred and still occur, we must work together to avoid bitter terminology and the oversimplification of the other side. So please avoid comparing
Schuette vs. BAMN to Jim Crow or slavery.
Schuette vs. BAMN to Jim Crow or slavery.
Source:
Schuette vs. BAMN. 572 U. S. (2014)
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