Schuette v. Coal. to Defend Affirmative Action

• Decision Date: 22 April 2014
• Docket Number: No. 12–682.,12–682.
• Citation: 572 U.S. 291,134 S.Ct. 1623,188 L.Ed.2d 613
• Parties: Bill SCHUETTE, Attorney General of Michigan, Petitioner v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.
• Court: U.S. Supreme Court

572 U.S. 291

134 S.Ct. 1623

188 L.Ed.2d 613

Bill SCHUETTE, Attorney General of Michigan, Petitioner

v.COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al.

No. 12–682.

Supreme Court of the United States

Argued Oct. 15, 2013.

Decided April 22, 2014.

John J. Bursch, Solicitor General, Lansing, MI, for Petitioner.

Shanta Driver, Detroit, MI, for Respondents Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, et al.

Mark D. Rosenbaum, for Respondents Chase Cantrell, et al.

B. Eric Restuccia, Deputy Solicitor General, Aaron D. Lindstrom, Assistant Solicitor General, Bill Schuette, Michigan Attorney General, John J. Bursch, Solicitor General, Counsel of Record, Lansing, MI, for Petitioner.

Winifred Kao, Asian Americans Advancing Justice–Asian Law Caucus, San Francisco, CA, Doyle G. O'Connor, Chicago, IL, George B. Washington, Counsel of Record, Shanta Driver, Eileen R. Scheff, Monica R. Smith, Joyce P. Schon, Ronald Cruz, Scheff, Washington & Driver, P.C., Detroit, MI, for Respondents Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, et al.

Laurence H. Tribe, Cambridge, MA, Joshua I. Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Mark D. Rosenbaum, Counsel of Record, David B. Sapp, ACLU Foundation of Southern California, Los Angeles, CA, Karin A. DeMasi, Nicole M. Peles, Cravath, Swaine & Moore LLP, New York, NY, Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, CA, Sherrilyn Ifill, Damon T. Hewitt, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Steven R. Shapiro, Dennis D. Parker, ACLU Foundation, New York, NY, Melvin Butch Hollowell, Jr., Detroit Branch NAACP, Detroit, MI, Kary L. Moss, Michael J. Steinberg, Mark P. Fancher, ACLU Fund of Michigan, Detroit, MI, Jerome R. Watson, Miller, Canfield, Paddock and Stone, P.L.C., Detroit, MI, Daniel P. Tokaji, The Ohio State University, Moritz College of Law, Columbus, OH, for Respondents Chase Cantrell et al.

Stephanie R. Setterington, Varnum LLP, Grand Rapids, MI, for Respondents Board of Governors of Wayne State University and Irvin Reid.

Leonard M. Niehoff, Honigman Miller Schwartz and Cohn, LLP, Ann Arbor, MI, for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University, Mary Sue Coleman, and Lou Anna K. Simon.

Michael E. Rosman, Center for Individual Rights, Washington, D.C., Alan K. Palmer, J.D. Taliaferro, Washington, D.C., Charles J. Cooper, Counsel of Record, David H. Thompson, Howard C. Nielson, Jr., Cooper & Kirk, PLLC, Washington, D.C., for Respondent Eric Russell.

Bill Schuette, Attorney General, John J. Bursch, Michigan Solicitor General, Counsel of Record, Lansing, MI, B. Eric Restuccia, Deputy Solicitor General, Aaron D. Lindstrom, Assistant Solicitor General, for Petitioner.

Justice KENNEDY announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Justice ALITO join.

The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257. The law school admission plan was addressed in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. Each admissions process permitted the explicit consideration of an applicant's race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. 539 U.S., at 270, 123 S.Ct. 2411. In Grutter, the Court found no constitutional flaw in the law school admission plan's more limited use of race-based preferences. 539 U.S., at 343, 123 S.Ct. 2325.

In response to the Court's decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case.

The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, § 26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows:

"(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district 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.

"(2) The state 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.

"(3) For the purposes of this section 'state' includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1."

Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); students; faculty ; and prospective applicants to Michigan public universities. The named defendants included then-Governor Jennifer Granholm, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General was granted leave to intervene as a defendant. The United States District Court for the Eastern District of Michigan consolidated the cases.

In 2008, the District Court granted summary judgment to Michigan, thus upholding Proposal 2. BAMN v. Regents of Univ. of Mich., 539 F.Supp.2d 924. The District Court denied a motion to reconsider the grant of summary judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), and in the cases that Seattle relied upon.

The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F.3d 466 (C.A.6 2012). The majority opinion determined that Seattle "mirrors the [case] before us." Id., at 475. Seven judges dissented in a number of opinions. The Court granted certiorari. 568 U.S. ––––, 133 S.Ct. 1633, 185 L.Ed.2d 615 (2013).

Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U.S. ––––, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.

This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: "Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop." 539 U.S., at 342, 123 S.Ct. 2325 (citing United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring) ("[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear")). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure "permits 'innovation and experimentation' " and "enables greater citizen 'involvement in democratic processes.' " Bond v. United States, 564 U.S. ––––, ––––, 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ). While this case arises in...