Tag: affirmative action

It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

Government Racism on Trial: Schuette and EEOC v. Kaplan

Today the Supreme Court hears argument in the Schuette case, regarding the constitutionality of Michigan voters’ decision to ban racial discrimination and preferences in public university admissions (the equivalent bans for public employment and contracting haven’t been legally challenged). In no conceivable world can the Equal Protection Clause – the constitutional provision that bans racial discrimination – prohibit a state law that bans racial discrimination. The Supreme Court should and almost certainly reverse the lower court’s ridiculous judgment to the contrary, and will likely do so with a great degree of unanimity on the “political structure” aspect of the case.

Coinciding with that oral argument, Cato is getting involved in a lower-court case called EEOC v. Kaplan Higher Education Corp. Here’s the situation: Following several incidents of employee theft, Kaplan University did what any reasonable employer might do in similar circumstances: it instituted heightened screening procedures for new hires. This process included credit checks to filter out potential employees at greater risk of committing theft. These checks made no mention of any applicant’s race and Kaplan didn’t collect any race information from applicants, thus making the hiring process both race-neutral and race-ignorant. Nevertheless, the Equal Employment Opportunity Commission, which itself uses credit checks in hiring decisions, sued Kaplan under Title VII of the Civil Rights Act, claiming that the use of credit checks has an unlawfully disparate impact on African American applicants.

Because Kaplan doesn’t keep racial data for applicants, the EEOC had to come up with its own data to prove its case. The agency thus created a team of “race raters,” a group of seemingly random people who sorted Kaplan’s job applicants into racial categories based only on the applicant’s name and DMV photo. (You can’t make this stuff up!) Because of the unscientific and unreliable nature of this data, the EEOC was soundly rebuffed in the federal district court in Ohio where it brought its case.

Now before the U.S. Court of Appeals for the Sixth Circuit, the EEOC is continuing its awkward crusade against employers’ use of credit checks. Cato, joining the Pacific Legal Foundation, the Center for Equal Opportunity, the Competitive Enterprise Institute, and Project 21, has filed a brief supporting Kaplan and arguing that the EEOC’s use of “race raters” and its incautious application of disparate-impact theory violate the Fifth Amendment’s equal protection guarantee.

Classifying people into racial categories based on their name and physical features is a demeaning violation of the Constitution’s mandate that individuals be treated as individuals and not reduced to mere members of a racial class. We also argue that the EEOC’s irresponsible use of disparate-impact theory to attack reasonable business practices contradicts the spirit of equal protection by forcing employers to consider race for all of their business-related decisions in order to avoid bureaucratic entanglement.

When combined with the ongoing Fisher v. UT-Austin saga, we see that while Jim Crow is dead, various government actors continue to offer massive resistance to the ideal of a colorblind society.

Obama Administration Ignores Supreme Court, Encourages Racial Preferences

Two months ago I wrote about the University of Texas’s attempts to delay the final reckoning from the Supreme Court’s near-unanimous ruling in the Fisher case that public institutions must overcome a high constitutional bar when they use race in admissions decisions. Courts must make “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

“The university must prove,” Justice Kennedy wrote for the 7-justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT-Austin is playing lawyer games and trying to re-litigate previously decided procedural issues.

But at least UT-Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”

On Friday, the federal Justice and Education Departments issued a joint “guidance” on the meaning of Fisher v. UT-Austin. This advice, consisting of a platitudinal cover letter and a superficial Q & A. The government’s position, remarkably, is that Fisher simply reaffirmed 2003’s ruling in Grutter v. Bollinger, which held that educational diversity could be a compelling interest that justified racial preferences at the University of Michigan. “Run along, nothing to see here,” the various civil-rights-division bureaucrats seem to say, “the Supreme Court just vacated the lower court’s decision because it didn’t check all the procedural boxes.

To say that the government is being disingenuous here would be like saying that Ted Cruz has a mild distaste for Obamacare. As Richard Kahlenberg comments at the blog of The Chronicle of Higher Education:

This reading of the two Supreme Court cases as essentially identical would presumably be surprising to the justices of the court. Five Supreme Court justices participated in both Grutter and Fisher, yet four of them switched sides in the two cases. Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas dissented in Grutter, in part because universities were not made to demonstrate that race-neutral strategies were insufficient to produce racial diversity, yet those justices were in the majority in Fisher.

Meanwhile, Justice Ruth Bader Ginsburg switched in the other direction, from the majority in Grutter to the dissent in Fisher. Her dissent complained that the majority would push universities to adopt race-neutral strategies like Texas’ top 10-percent plan, which she viewed as disingenuous. (Justice Stephen G. Breyer, alone, was in the majority in both cases.)

Moreover, the government is green-lighting any and all diversity initiatives rather than giving actual guidance about how to survive the legal minefield that administrators now inhabit. As Roger Clegg put it at National Review Online:

The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination: The administration promises that it “will continue to be a resource” for such schools.

It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law. Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?

In short, the government not only pretends that the Supreme Court didn’t mean what it said, but is encouraging college officials in their massive resistance to yet another Supreme Court ruling on civil rights. These actions enable the type of “holistic” racial balancing that results in greater racial-achievement gaps than illegal quotas ever did. Racial preferences today, racial preferences tomorrow, racial preferences forever.

It would be comical if it weren’t so sad – and if it weren’t backed by the full force of the nation’s chief law enforcement officers.

Requiring Equal Protection Doesn’t Violate the Equal Protection Clause

It’s unusual that the Supreme Court would choose to review an affirmative action case even though Fisher v. UT-Austin was still pending. Ordinarily, when faced with a second case on the same legal issue, the justices “hold” it until they decide the first, then either send the second one back to the lower court to apply the newly announced rule or, perhaps, schedule it for oral argument on any additional issues that need to be addressed. Yet Schuette v. Coalition to Defend Affirmative Action is no ordinary case. 

Schuette asks whether a ban on racial preferences — or at least how that ban was enacted — violates the Equal Protection Clause, whereas Fisher asked whether their use does. In Schuette, 58% of Michigan voters approved Proposal 2 (a.k.a. the Michigan Civil Rights Initiative), a state constitutional amendment that prohibited racial preferences in public education, employment, or contracting. That ban was challenged by a coalition of groups and individuals who support the continued use of affirmative action, particularly at institutions of higher education.

A federal district court upheld the ban, but then a panel of the U.S. Court of Appeals for the Sixth Circuit struck it down by a 2-1 vote. The full Sixth Circuit then agreed that Prop 2 was unconstitutional, in a contentious 8-7 ruling that produced five separate dissenting opinions. Now before the Supreme Court, Cato has joined the Pacific Legal Foundation and four other organizations on an amicus brief arguing that Michigan voters have acted constitutionally by prohibiting race- and sex-based discrimination or preferential treatment in public university admissions.

We contend that Prop 2 doesn’t violate the Equal Protection Clause under the Court’s “political structure” precedent, which outlaws subtle distortions of governmental processes in a way that places special burdens on the ability of minority groups to achieve beneficial legislation. The measures struck down in under that line of precedent differ marked from Prop 2 because, unlike in those older cases, minorities now have more protections against discrimination. Moreover, these protections apply across all levels of state government, not just discrete functions like housing and school busing.

Furthermore, Prop 2 creates no racial classifications so it cannot trigger “strict scrutiny” review. The simple fact that Prop 2 deals with race does not imply that it somehow disenfranchises racial minorities. If the Court finds that the “political structure” doctrine prohibits Prop 2, that precedent must be overruled as inconsistent with the text of the U.S. Constitution — though this is probably unnecessary given more modern precedent.

Interestingly, the California Civil Rights Initiative, known as Proposition 209, has been upheld repeatedly by the (notoriously left-wing) Ninth Circuit. Indeed, there is a wealth of evidence showing that minorities are succeeding under that system, which also prohibits the consideration of skin color in college admissions — and has led to higher attendance and graduation rates.

We urge the Supreme Court to side with Michigan’s voters and hold their ban on racial preferences (which the Court itself has admitted to be on shaky constitutional ground) to be constitutional.

The Court will hear the Schuette case in October or November.

College Applicants Should Be Judged on Their Merits, Not the Color of Their Skin

The Supreme Court has waded back into the affirmative action thicket, taking up the issue of the proper role, if any, of race in college admissions, in the case of Fisher v. University of Texas at Austin, which it will be hearing this fall, likely in October.

Abigail Fisher, who is white, was denied admission to the University of Texas at Austin even though her academic credentials exceeded those of many admitted minority applicants. She challenged UT-Austin’s consideration of race in selecting its incoming freshmen but lost before the district court in light of the Supreme Court’s 2003 ruling in Grutter v. Bollinger.

In Grutter, a divided Court held that using race as a factor (but not one tied to a set number of points or quotas) was justified in the name of diversity. But UT-Austin’s admissions program treats race in a different way, and gets different results, than did the admissions program Grutter upheld at the University of Michigan Law School.

The Fifth Circuit panel nevertheless affirmed the district court, but Judge Emilio Garza specially concurred to say that while he was bound by Grutter, that decision seemed to conflict with other precedent and with the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit then voted 9-7 against rehearing the case en banc (before all judges on the court), over a sharp dissent from Chief Judge Edith Jones that emphasized how the ruling would allow states to play fast-and-loose with Grutter’s narrow-tailoring requirement.

Now before the Supreme Court, Cato filed an amicus brief supporting Abby Fisher and arguing that the Fifth Circuit showed blind deference to UT’s policy rather than the constitutionally demanded strict scrutiny. The lower court explicitly declined to evaluate the merits of UT’s decision to consider race, instead assuming the institution’s good faith. Under this rule, a public university’s mere assertion of a diversity interest, irrespective of the university’s precise circumstances or actual motivations, trumps an applicant’s right to be treated as an individual rather than a racial specimen.

We also point out that the Fifth Circuit ignored the Supreme Court’s requirement (from the 1989 case of City of Richmond v. J.A. Croson Co.) that the government demonstrate a “strong basis in evidence” for racial classifications in order to smoke out the illegitimate motivations that can underlie such schemes. That is, Grutter upheld Michigan’s racial preferences because the school showed that minority enrollment would have plummeted to almost nothing without them, while UT had already achieved real diversity (beyond even that created by Michigan’s preferences) with a race-neutral law that guarantees admission to anyone graduating in the top 10 percent of a Texas public school.

Finally, we note that even if UT could show that racial preferences were necessary for some legitimate reason, its chosen paradigm for applying such preferences is arbitrary. For example, UT justifies preferences to Hispanics by pointing to the need for a “critical mass” of such students, even as it denies preferences to Asians, who comprise a smaller portion of the student body.

We urge the Supreme Court to reign in UT’s unbridled use of race in admissions decisions and take an important step toward ensuring that young Americans are judged on their qualifications and character rather than their skin color.

The Longhorn Mismatch: Too Much Racial Preference, Too Little Success

Last week the Supreme Court asked the University of Texas to respond to a cert petition raising an issue that in any non-Obamacare year would be the most explosive part of the Court’s docket: racial preferences in higher education.  (UT had for some inexplicable reason failed even to file a waiver, which is customary in cases where the respondent feels no need to file an actual brief.)

The case was brought by Abigail Fisher, a white Texan denied admission to UT-Austin even though her academic credentials exceeded those of admitted minority students.  The district court granted summary judgment to the university and the Fifth Circuit panel affirmed because a divided Supreme Court in the 2003 case of Grutter v. Bollinger (the University of Michigan case) found narrowly tailored racial preferences to be constitutionally justified for the sake of diversity.  Judge Emilio Garza wrote an electrifying concurrence – starting at page 58 here – agreeing that the ruling was correct under Grutter but that Grutter itself, and the regime of “soft” racial preferences (i.e., not quotas) it created, is incompatible with the Equal Protection Clause. 

The Fifth Circuit then denied en banc rehearing by a vote of 7-9, over a sharp dissent by Chief Judge Edith Jones.  (Full disclosure: The judge I clerked for lo those years ago, E. Grady Jolly, joined Chief Judge Jones’s dissent.)

Fisher’s cert petition objects to the wide discretion the Fifth Circuit would grant UT in administrating its racially preferential admissions paradigm, arguing that affording deference to the university extends Grutter and cannot be consistent with the “strict scrutiny” Grutter requires. Indeed, rather than working to phase out public university race preferences consistent with the expectations the Court articulated in Grutter – Justice O’Connor famously wrote that the diversity rationale would only suffice for about 25 years – the Fifth Circuit provides a veritable roadmap for discriminatory state action.

Now, it would be ideal if all nine justices were courageous enough to uphold constitutional protections for all citizens by refusing to legitimize racially discriminatory state action, regardless of the good-faith motives or other political atmospherics surrounding that action. Progressive legal theory being what it is, however, such a result, where people are judged on the content of their character/qualifications rather than the color of their skin, is unfortunately still a dream. There is, however, an argument that might sway even those members of the Court who support affirmative action as a policy matter: race preferences hurt those they are intended to help.

As highlighted in Richard Sander and Stuart Taylor’s amicus brief, a growing body of research suggests that when the capabilities of a student’s peers exceed their own, the student performs worse than when surrounded by peers with objectively similar capacities. Sander (a UCLA economist and law professor) and Taylor (a lawyer and journalist who has long covered civil rights issues) utilize this “mismatch theory” to discredit the assumption underlying race preference programs – that they benefit minorities – and demonstrate that the opposite is true. They further point out that racial preferences have failed to have their intended effects; namely, preventing racial balancing, fostering diversity, and making universities more attractive to minorities.

Three U.S. Civil Rights Commissioners also filed an amicus brief presenting evidence that racial preferences produce the opposite of their intended effect; they discourage rather than facilitate the entry of minorities into prestigious careers by incentivizing elite public universities to admit students they would not admit if admissions were race-blind. They argue that racial preferences place students in environments that do not optimize to their learning. Citing robust statistics, they conclude that this effect actually discourages minorities from entering science and engineering careers and becoming college professors, and decreases the number of minority students accepted to law schools who actually earn JDs and pass the bar exam.

The well-intentioned advocates of race-conscious public university admissions got it wrong under the Constitution. These briefs further illustrate the detriment everyone in society suffers when state action based on race rather than merit dictates the paths of young Americans.

Under the Court’s request for a response, the university has until the end of the month to file, unless it asks for and is granted an extension.  If the university’s response arrives by January, the case – if the Supreme Court takes it – should be on schedule for argument and decision this term.  For more on Fisher v. University of Texas, see the case’s SCOTUSblog page.

Thanks to Cato legal associate (and UT alumna) Anna Mackin for help with this blogpost.

The Sotomayor Hearings

judgesotomayorNothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she – an average federal judge with a passel of unimpressive decisions – would not even be part of the conversation if she weren’t a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views – and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.