Taxpayers of all races pay more when state contracts are doled out based on race, rather than awarded to the lowest bidder. That’s one reason why it’s great news that the Supreme Court reversed a bizarre lower court ruling claiming that it violates the Constitution for voters to ban racial preferences in state government. In its 6-to-2 decision Tuesday in Schuette v. Coalition to Defend Affirmative Action (BAMN), the Supreme Court court overturned a contentious, 8-to-7 ruling by the liberal Sixth Circuit Court of Appeals striking down a provision of the Michigan state constitution that rightly banned racial preferences in government contracts and employment, and in state college admissions.
That provision (Article I, §26) was added to the state constitution by a 2006 ballot initiative, known as Proposal 2 or the Michigan Civil Rights Initiative. It passed easily with support from 58 percent of all Michigan voters. The Supreme Court’s moderate and conservative justices, and one of the court’s four liberals (Justice Stephen Breyer), voted to uphold it. By contrast, liberal Justice Sonia Sotomayor, who was appointed by President Obama, wrote a dissent urging that it be struck down (a dissent she was joined in by Justice Ruth Bader Ginsburg, the longest-serving liberal Justice).
The Court of Appeals’ 8-to-7 ruling, which claimed it violated the Constitution’s equal protection clause to mandate that people be treated equally without regard to their race, defied common sense: It is nonsensical to argue that the Equal Protection Clause requires that people be treated unequally. The Sixth Circuit’s ruling also conflicted with rulings the California Supreme Court and the Ninth Circuit Court of Appeals upholding a materially-indistinguishable provision added to California’s state constitution, known as the California Civil Rights Initiative or Proposition 209. That provision, approved by California voters in 1996, was upheld in 1997 by the Ninth Circuit, and later upheld by the California Supreme Court in 2010 in a 6-to-1 vote.
That strange ruling that voters could not limit racial preferences through ballot initiatives risked harming taxpayers by increasing the cost of government contracts. Even fairly mild government affirmative action programs that do not impose racial quotas nevertheless impose substantial costs on taxpayers. For example, in the Domar Electric case, Los Angeles accepted a bid for almost $4 million to complete a contract rather than the lowest bid of approximately $3.3 million, at a cost to taxpayers of more than $650,000. The lowest bidder was rejected solely because it failed to engage in affirmative action in subcontracting. California’s Proposition 209 later limited this sort of racial favoritism by banning racial preferences, voiding a number of state affirmative-action programs, and thus saving taxpayers millions.
Justice Sonia Sotomayor’s dissent purported to rely on the controversial “political restructuring” doctrine, which holds that shifting a decision on a public policy issue from one level or branch of government to another is sometimes unconstitutional if it disadvantages minorities. (The Cato Institute’s Walter Olson discusses the incoherent nature of this doctrine at this link.)
As Justice Sotomayor described it in her dissenting opinion, the doctrine applies in cases where the state “reconfigur[es] the existing political process… in a manner that burdened racial minorities.” But as law professor Ilya Somin noted in response, this begs the question, since racial preferences harm racial minorities, such as Asian-American college and magnet-school applicants (who often must meet even higher standards than white applicants to be admitted). Thus, Michigan’s ban on racial preferences helped, rather than “burdened,” many members of racial-minority groups. Like the Asian American Legal Foundation, which filed briefs in support of Michigan’s Proposal 2, I look forward to the day when my Asian niece and nephew are judged by the content of their character, not the shape of their eyes or the color of their skin.
The Michigan provision was proposed in response to a Supreme Court decision, Grutter v. Bollinger, that upheld a race-based admissions policy at the University of Michigan law school, saying that federal law did not prohibit such a policy. That policy discriminated at least as much against Asian applicants as whites, while discriminating in favor of blacks and to a lesser extent Hispanics. As Somin notes, “banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways.”
Justice Sotomayor’s dissent stretched the Supreme Court’s “political-process” line of cases out of shape, in claiming that the Michigan Civil Rights Initiative violated them by curbing state universities’ ability to consider race in college admissions. She claimed that Michigan had impermissibly altered the “political process” for deciding on whether to adopt racial measures “beneficial” to minorities, citing a controversial 5-to-4 Supreme Court ruling in 1982 that invalidated a Washington State ballot initiative that removed local school districts’ discretion to use busing to remedy de facto segregation, but allowed them to use busing for certain other reasons. See Washington v. Seattle School Dist. No. 1 (1982).
But the rationale behind that decision was that the state had altered the political process in a racial fashion by selectively shifting race-related decision-making from local government to the (more remote and less easily-influenced) state government. But state universities, unlike school districts, are arms of the State, for purposes of the Eleventh Amendment. The state government is not a more remote level of government than they are; indeed, they are part of it. Moreover, a state obviously has a keen and legitimate interest in preventing racial discrimination for which it itself can be held liable out of the state treasury.
For example, when, in the case of Gratz v. Bollinger, the University of Michigan’s undergraduate admissions policy, which discriminated against whites and Asians through a race-based points system, was declared unconstitutional by the Supreme Court (ironically, on the very same day that it upheld the law school’s use of race in admissions), the University was ordered to pay hundreds of thousands of dollars in attorney fees to the lawyers who successfully challenged its admissions policy. Under Sotomayor’s absurd argument, the State of Michigan is forbidden from telling state colleges not to engage in the very racial discrimination that violated the Constitution in the Gratz case, even though the State could end up footing the bill for such discrimination. This notion was rejected in another 1982 Supreme Court decision, which upheld a California state constitutional amendment restricting the use of race, because such an amendment was a change in substantive law, not the political process.
Justice Sotomayor’s claim that statewide bans on racial preferences violate the Constitution was rejected by the Supreme Court itself in Crawford v. Board of Education of Los Angeles, 458 U.S. 527 (1982), which held that the voters of California acted permissibly when they passed a referendum eliminating the state constitutional right to be bused to a racially-balanced school, and barring state courts from ordering such busing. The Crawford decision rejected the argument that the voters of California distorted the political process in a racial manner merely because that ballot initiative’s change in the law effectively required minorities to go to what Sotomayor views as a more “remote level of government” — the statewide referendum — if they wished to reinstate busing. (Her suggestion that a constitutional amendment is a distortion of the political process because it can be changed only by referendum is tantamount to defining every civil liberty guaranteed by the Bill of Rights and state constitutions as a distortion of the political process. Each can be altered only by subsequent constitutional amendment, invariably requiring proponents of the subsequent amendments to go to a “remote” level of government.)
The Crawford decision noted that while the anti-busing amendment dealt with a racial issue of particular concern to minorities, it worked a change in substantive law rather that the political process, defining state constitutional rights rather than altering the procedures by which laws dealing with race are adopted. Like the anti-busing amendment sustained in Crawford, the the Michigan Civil Rights Initiative defines citizens’ substantive rights under the state constitution, rather than changing the process of government decision-making. Concurring in the Crawford case, Justice Blackmun, who wrote the opinion striking down the Washington anti-busing law in Seattle, explained that he was voting to uphold California’s amendment in part because deciding to the contrary would prevent the states from repealing “statutory affirmative-action” programs — just as the voters of Michigan did. See Crawford, pp. 546-47. Similarly, Justice Blackmun’s Seattle ruling rejected the dissent’s prediction that his decision would prevent a state from repealing affirmative action in “local employment” for “racial minorities” on the theory that such repeal would distort the racial decision-making process. See Washington v. Seattle School District No. 1, at pg. 480 n.23; see also pg. 498 n.14 (Powell, J., dissenting).