Some Key Points On The SCOTUS Decision

If came here looking for comparisons to Dred Scott you came to the wrong place. This is a discussion of the Shuette vs. BAMN decision.

Lets first look at commentary from Justice Justice Kennedy:

(a) This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.

Well that is the first point. When we look at Sotomayor's dissent. Keep this in mind.

Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued. By approving Proposal 2 and there­ by adding §26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences.

So again, this isn't actually about Affirmative Action but about the rights of citizens to vote for or against legislation by constitutional means. Note that there is no claim of injury. We do know that most times (if not all) the claimant must show damage.

The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory pur­pose. It plainly does not.

Note the commentary about equal protection. This is where the complainant runs afoul of the law. See once folks started waving the equal protection flag, they failed to realize that it would come and bite them in the ass. Affirmative Action is definitively NOT equal protection. That's OK too. So long as you admit it and justify it. Say that you're bypassing equal protection for the purposes of seeking an advantage for your group. But to act as if a clearly non equal policy is equal is absurd. Says Kennedy:

More fundamentally, the analysis misreads the Equal Protection Clause to protect particular groups, a construction that has been repudiated in a “long line of cases under­standing equal protection as a personal right.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 230. Pp. 7–12.

I've made similar observations of late. Mozilla.org should take note. Eich was denied equal protection of employment law (particularly the 1964 Civil Rights Act) when Mozilla declined to discipline employees who created a hostile work environment for Eich due to his religious belief and practice and eventually forced him out (resigned my foot). But that's an entirely different case.

Furthermore, note that the case has to show discriminatory purpose. This is key because slowly but surely claims of disparate impact is also falling apart. Speaking of which...

(d) Hunter and Seattle also endorse a version of the propositionthat a facially neutral law may deny equal protection solely because it has a disparate racial impact. That equal-protection theory has been squarely and soundly rejected by an “unwavering line of cases” holding “that a violation of the Equal Protection Clause requiresstate action motivated by discriminatory intent,” Hernandez v. New York, 500 U. S. 352, 372–373 (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely be­cause it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264–265.

Discriminatory intent. Not disparate impact. Look folks. People are simply not going to continue to accept the argument that because x group isn't seen in y numbers that there must be discrimination. It may be the case that such things do stem from discrimination but simply making the accusation is not going to hold water much longer. Not with readily available data at the fingertips of everybody.

Respondents cannot prove that the action here reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not— cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1. Pp. 15–17.

I was saying....

Third, Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School Dist. No. 1, 458 U. S. 457, which reflect the important principle that an individual’s ability to participate meaningfully in the political pro­cess should be independent of his race, do not apply here. Those cas­es involved a restructuring of the political process that changed thepolitical level at which policies were enacted, while this case involves an amendment that took decisionmaking authority away from une­lected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority’s ability to partici­pate in the political process.

This is key to the entire decision. Essentially the claimant was saying that by reason of being a minority group that they should be able to overturn the votes of the majority simply because that minority disagreed with it. That is not how the political process works. The process works to make sure that the minority has equal access to the political process in order to organize and become a voting majority via voter growth or coalition. What the claimant wanted to do was far more dangerous than the legislation they disagreed with.

Now let's look at Sotoymayor's dissent:

At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amend­ment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right.

True. But note that the act that she discusses was a limiting of a given right. Affirmative Action is not an enumerated right under any constitutional reading. Therefore the voting example is irrelevant to the case at hand.

The majority tried again, replacing outright bans on votingwith literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too.

Yes, that is also true but it is also irrelevant to this case. As mentioned before the example here was an abridgment of an enumerated constitutional right. Affirmative Action is not an enumerated constitutional right.

This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority,and the minority alone, to obtain policies designed tofoster racial integration.

Really? How so? Did they stop the minority from voting? How does a ballot initiative “change the grounds”? Did they change how many votes were needed? Did they only allow voting during a certain time? Place? Secondly, since when did those without the votes to pass legislation get the right to determine certain pieces of legislation? That doesn't sound very democratic to me. Why have a vote if the losing party can simply claim that they don't like the outcome and therefore shall overturn the results?

purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.

What exactly is “meaningfully”? Does that mean getting the outcome they want? What is equally? Getting the outcome you want? Participation does not mean getting what you want every time. It means you get an equal chance to (in this case) vote. But let's get to the meat of Sotomayor's complaint.

Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions poli- cies2—were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michi­gan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. … In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies.Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through gen­eral public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action. But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 elec­tion by amending the Michigan Constitution to enact Art.I, §26, which provides in relevant part that Michigan’s public universities “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.”

Here is Sotomayor's issue. She wants to limit what the Michigan voter can do in regards to it's public institutions. She says that the only and proper way to change the policies of Michigan public colleges and universities is to get the boards to change their minds rather than setting rules by which the board members must abide by. I wonder if she feels the same way about California's prop 8. Shouldn't those with an interest in same sex marriage waited on the legislature to make the change rather than using the court to overturn a voted on law?Secondly what if those who wanted the board to change it's policies had already gone through the process of changing the board members or asking for x,y or z changes and the board refused? What if the situation was that the board didn't think black folks should be in Michigan schools at all. What if the majority of voters disagreed with the board but the board never made the changes sought by the Michigan voters? Would Sotomayor still be of the position that the voters would be wrong to demand via legislation that blacks be admitted? This would be equal protection.

As a result of §26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universi­ties: one for persons interested in race-sensitive admis­sions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advo­cate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her posi­tion. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.

Question: Are all persons in Michigan under the same restriction of not being able to advocate for race-sensitive admissions? Yes? Then it is equal protection under the law.Question: Are there any black University of Michigan alumnus? Yes? Can they equally advocate for a legacy admission? Yes? Are they also barred from using race? Yes? Then it is equal protection.

Point: Sotomayor is absolutely incorrect in her assertion that the only policy that Michigan citizens may not seek is race. The language, which she quoted says:

“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, orpublic contracting.”

So actually, ALL Michigan citizens may not make race sex, color, ethnicity or national origins into consideration. Sotomayor can read. Why did she write as if she doesn't know this? That is because she's only interested in one portion of the rule. Women are quite secure in their status at Michigan institutions and are under no threat by such rules so that's OK.

Our precedents do not permit political restructurings that create one process for racial minorities and a sepa­rate, less burdensome process for everyone else.

Which of course it does not. Again, there was no process that singled out racial minorities, women, other nationals from voting for or against the proposition. It wasn't separate no matter how much she says it was.

This Court has held that the Fourteenth Amendment does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”

Justice Kennedy already gave the deathblow to this argument. It simply cannot be argued that certain groups, any group has a right to have legislation it wants and likes to be passed. Being a minority group comes with it the burden of having a harder time to get legislation you want passed (see Congress).

Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved, contra, ibid.—that is, it must be resolved in constitution- ally permissible ways. While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access tothat process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.

I'm glad Sotomayor realizes the Constitution does not guarantee minority groups victory. I was worried there for a minute. But again she is there with the “meaningful”. What is “meaningful”? That seems to me to be a backdoor way of saying “get victory”.

To the point of “permanent” staking against minority voter blocks. Again that is part and parcel of being a minority voting block. It is ALWAYS harder for the minority group to effect policy.
Secondly I repeat again that “diversity” is not an enumerated right that a group can sue over. It may be a laudable goal, but it is not a right. There is also the assumption that the ONLY groups interested in Affirmative Action for races are racial minorities. This is mistaken. While racial minorities may be the leading proponents of Affirmative Action (and recent events in California undercut that argument with Asian opposition to the re-instatement of racial considerations in college admissions) there are many non-minorities who also have an interest in the policy. So a proper question would be how come those who were for the policy were unable to get others into their camp?

Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids,the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes consti­tutional protections long recognized in our precedents.

Which isn't what happened. The Constitution prohibits taking away citizen's rights. That's the 15th Amendment. Nobody's rights were taken away. In fact had the court ruled differently then it would have in effect claimed that minority groups of any kind can overturn ballot initiatives they do not like just because they are a minority group. That is very dangerous.Sotomayor then goes on to cite many cases where states enacted laws that abridged the rights of certain citizens. There is no argument that those things were not only morally wrong but that they were unconstitutional. But in each example they were of laws abridging enumerated rights of citizens. The Michigan case has no such quality.
Sotomayor attempts to compare a case in Virginia where the school board was changed in an attempt to stop desegregation. Again this case is irrelevant to the Michigan case because Michigan is not trying to segregate it's student body. This is key. Arlington County was wrong because it intended to block the equal protection rights of blacks in that county. Michigan has no such intention or effect.

Similarly Sotomayor's example of the Miss. Legislature fails. In that case Miss decided to strip the rights of people to elect. That is the state abridged the rights of the citizenry. Michigan did no such thing. It did not remove the board members (which she herself pointed out). Nor did Michigan stop anyone from voting either way. Michigan simply decided to further narrow what the board could use in admission policies. It did not abridge the right of any person from applying to Michigan universities and to be considered on their academic merits.

Again with Sotomayor's Arkansas example. There the state not only stripped the board from making any decision, particularly as it regarded desegregation, thereby stripping black citizens of their equal protection rights, the Governor also closed schools in order to enforce this rule. That action also abridged the rights of black citizens of that state. Again, Michigan did no such thing. Not even close. It is also very strange that Sotomayor would use the example of state appointments in her dissenting opinion:

The States’ political restructuring efforts in the 1960’s and 1970’s went beyond the context of education. ManyStates tried to suppress the political voice of racial minori­ties more generally by reconfiguring the manner in whichthey filled vacancies in local offices, often transferring authority from the electorate (where minority citizens hada voice at the local level) to the States’ executive branch(where minorities wielded little if any influence). See, e.g., 1981 Hearings, pt. 1, at 815 (report of J. Cox & A. Turner) (the Alabama Legislature changed all municipal judge­ships from elective to appointive offices); id., at 1955 (report of R. Hudlin & K. Brimah, Voter Educ. Project, Inc.) (the Georgia Legislature eliminated some elective offices and made others appointive when it appeared that a minority candidate would be victorious); id., at 501 (statement of Frank R. Parker, Director, Lawyers’ Comm.for Civil Rights Under Law) (the Mississippi Legislature changed the manner of filling vacancies for various publicoffices from election to appointment).

Why? Because the Michigan board is appointed. It would seem from the language Sotomayor is using that she would WANT the citizenry to assert themselves over the board(s). But it is clear that she only wishes for certain groups to be able to do the asserting and only for goals she agrees with. That is not equal protection. In using the Hunter case Sotomayor show's how she conflates wildly different examples:

In Hunter, the City Council of Akron, Ohio, enacted afair housing ordinance to “assure equal opportunity to allpersons to live in decent housing facilities regardless ofrace, color, religion, ancestry, or national origin.” 393 U. S., at 386 (internal quotation marks omitted). A major­ity of the citizens of Akron disagreed with the ordinanceand overturned it. But the majority did not stop there; italso amended the city charter to prevent the City Councilfrom implementing any future ordinance dealing withracial, religious, or ancestral discrimination in housingwithout the approval of the majority of the Akron elec­torate. Ibid. That amendment changed the rules of the political process in Akron. The Court described the result of the change as follows: “[T]o enact an ordinance barring housing discrimina­tion on the basis of race or religion, proponents had toobtain the approval of the City Council and of a major­ity of the voters citywide. To enact an ordinance pre­venting housing discrimination on other grounds, or to enact any other type of housing ordinance, propo­nents needed the support of only the City Council.” Seattle, 458 U. S., at 468 (describing Hunter; empha­sis deleted).

Again see that the proposed legislation barring discrimination is actually the same as what Michigan did. It's odd that Sotomayor does not see that plain as day.

What is also clear is how the Akron decision made a law that made a two tier system for discrimination ordinances. This differs from Michigan in two ways:1) Sotomayor claims that persons asking for legacy admissions is the same as discrimination. It is not. The Michigan legislation is to prevent what the majority of voters considered to be discrimination. It was not put up roadblocks to equal opportunity and equal protection.

2) Sotomayor thinks that things such as legacy admissions should be handled at the ballot box because legacy admissions (and athletes) are the same as race, gender and nationality. While I disagree that legacies and athletes are anything close to race, gender, national origins and the like, it is also clear that any group, including the claimants can put forth a ballot initiative to remove legacy status as a consideration. Whether it would pass is another thing entirely. But whether such legislation would or would not pass is irrelevant. Only that all citizens have the right to propose such an initiative. That was Kennedy's point.

But here goes Sotomayor telling untruths again:

Before the enactment of §26, Michigan’s political struc­ture permitted both supporters and opponents of race­ sensitive admissions policies to vote for their candidates of choice and to lobby the elected and politically accountable boards. Section 26 reconfigured that structure. After §26,the boards retain plenary authority over all admissions criteria except for race-sensitive admissions policies.5

Nope. Race, sex, color, national origins are all included.

The effect of §26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very uni­versity cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy. Such reordering of the political process contravenes

Absolute bullshit. No person has a “right” to attend the University of Michigan. One must be qualified for entry to the University of Michigan. This is why U of M and MSU and others can send letters declining admission. Secondly this is 2014 there are many, many, many black Michigan residents (and non-residents) who have graduated from U of M who can freely take advantage of the legacy program.

Thirdly any White, Asian, Black, Native American or whoever who never went to U of M cannot take advantage of the legacy program. All would be denied equally.

Fourthly no person of any persuasion should be able to lobby the board of any school to admit his or her child just because. How about that child do the work to qualify for admission? You know, how those Chinese and Indian students do year after year after year?

Sotomayor continues to cite case after case of discriminatory law and /or acts that abridge the enumerated rights of citizens but at no point shows that the Michigan law was discriminatory or abridged the enumerated rights of any of the groups mentioned in the law. The law removed what could be seen as an advantage given to a group based on race, sex, color or national origins. That is not discriminatory because none of the groups mentioned have a right to such consideration. Those groups may not like that such consideration is no longer extended to them, but it does not mean that they are suffering undue burdens.< P/> Sotomayor gives a nice overview of official discrimination and denial of equal protection. That's great. The problem is that most of what she says is irrelevant to the matter at hand. It is her job to focus on the matter at hand. Simply saying that what Michigan did looks like what Arkansas did or Akron did is not acceptable. Water and alcohol have a lot of things in common but they are definitely not the same.

Lastly I want to address the chart added to Sotomayor's dissent (pg 51). In it she shows the number of black persons of college age and then the enrollment of Freshmen. Let's be clear that when we look at the academic performances of African-Americans it is clear that many of them are simply not prepared for college work, particularly that required at such places as U of M. It is misleading to post a chart and say that because x-amount are college age thatx amount should be enrolled. I've seen what this can result in first hand.

I attended Michigan State in the early 90's. What the university did was enroll x amount of black students every year. The newspapers would ohh and ahh about how this class was so diverse and that x percent were African-American. By the middle of the semester many students were failing out. Many of those were already taking remedial classes. They eventually dropped out and had thousands of dollars in student debt and nothing to show for it. I looked at the data over a couple of years and saw the pattern of high enrollment followed by drop outs that brought the number of black students back to the mean. This helps no one with the possible exception of the banks that were to be paid back.
But what is MORE telling about the chart is the total absence of data for Asians. Why is it that Asians who are an even smaller minority than African-Americans are over-represented on campuses across the country? The very fact that Asian students outscore every other group in the US puts a lie to the idea that any group needs Affirmative Action to gain entry into schools. Grades matter. Preparation matters. All that matters more than any AA policy. This ruling is a great opportunity to address this blatant issue.