JURIST Guest Columnist William Araiza of the Brooklyn Law School says that if either the Ninth or Sixth Circuit strikes down state constitutional amendments ending affirmative action in college admissions using older lines of Supreme Court case law, the Supreme Court will likely grant certiorari to curtail or overrule the doctrine…

The US Court of Appeals for the Ninth Circuit’s ruling on Proposition 8 has reignited debate about judicial review of popularly-enacted referenda addressing hot-button issues. The debate over the constitutionality of affirmative action in university admissions, never far from the surface, has also reemerged with the US Supreme Court’s decision to review the US Court of Appeals for the Fifth Circuit ruling upholding the University of Texas’s affirmative action admissions policy. These two threads converge in a recent pair of cases considering constitutional challenges to state referenda banning the use of racial preferences in university admissions.

The story begins in 1996, when California voters approved Proposition 209, which prohibited such preferences. Civil rights groups immediately sued to block it; the following year the Ninth Circuit upheld its constitutionality in Coalition for Economic Equity v. Wilson. Wilson rejected the plaintiffs’ argument that Proposition 209 violated the Supreme Court doctrine announced in Hunter v. Erickson and Washington v. Seattle School Districts No. 1, by amending the state constitution to ban government-bestowed racial preferences but allowing advocates for other types of preferences to seek them from local government bodies. Hunter and Seattle involved referenda that imposed special procedural hurdles on legislation benefitting minorities. Hunter considered an Akron, Ohio ordinance that required any housing discrimination ordinance to be approved in a referendum before it could take effect. Seattle involved a statewide referendum restricting the use of school busing except when required to comply with the Fourteenth Amendment of the US Constitution. In both cases the Court held that the referenda violated minorities’ equal rights to participate in government by making anti-discrimination legislation on those topics harder to enact than other types of housing and education legislation.

Wilson rejected the plaintiffs’ application of the Hunter-Seattle reasoning to Proposition 209. The Ninth Circuit panel distinguished Proposition 209 from the referenda in Hunter and Seattle by concluding that Proposition 209, even if it did restructure the political process, did not do so in a way that “burden[ed] an individual’s right to equal treatment.” The panel reasoned that because Proposition 209 simply mandated non-preferential treatment it did not burden anybody’s equal protection rights.

The Ninth Circuit decided Wilson in 1997. In 2010 another civil rights group challenged Proposition 209, largely on the same theory, in Coalition to Defend Affirmative Action v. Brown. To avoid the precedential effect of Wilson, the plaintiffs argued that Wilson involved a facial challenge to Proposition 209. By contrast, it argued that its lawsuit attacked Proposition 209 as applied in the context of the state’s use of admissions criteria that allegedly discriminated against certain minority groups, thus requiring countervailing admissions preferences in order to ensure equality. The plaintiffs also argued that Grutter v. Bollinger, which upheld a law school’s race-based admissions program, implicitly undermined the suggestion in Wilson that color-blind policies did not burden applicants’ equal protection rights.

The district court in Brown rejected both of the plaintiffs’ arguments about the scope and the current viability of the Wilson opinion. The appeal is now before the Ninth Circuit. While it is absolute speculation, it is possible that the Brown plaintiffs understand they are likely to lose on these arguments, and are hoping to prompt an en banc review of their case — the only way Wilson could be overruled short of Supreme Court action.

Leaving aside the question of whether Wilson controls, the Brown plaintiffs’ arguments are not frivolous. Indeed, last year the same organization convinced two judges on a panel of the US Court of Appeals for the Sixth Circuit that these arguments required the striking down of Michigan’s Proposal 2, which essentially mirrors Proposition 209, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan [PDF]. The Regents majority rejected the distinction in Wilson between laws making anti-discrimination legislation harder to enact and those making racial preferences harder. Instead, it read Hunter and Seattle as simply inquiring whether the change in governmental decision-making structure made it harder for minorities to enact legislation favorable to them. Indeed, this same argument was made by the Ninth Circuit judges who in 1997 dissented from that court’s denial of en banc rehearing in Wilson. From there, it was easy for the Regents panel to conclude that Proposal 2 violated Hunter and Seattle. The Regents court explained the higher hurdle faced by a citizen seeking to reintroduce race-based, as contrasted to other, admissions preferences:

An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race. He may lobby the admissions committee directly … or petition higher administrative authorities at the university … [and] may seek to affect the election … of any of the eight [university] board members. Only as a last resort would the effort and expense of campaigning for an amendment to the Michigan Constitution be required. … Meanwhile a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. (emphasis in original).

After the Regents opinion came down the full Sixth Circuit decided to rehear the case en banc. Oral argument will take place on March 7.

It is difficult to predict the outcome of the Sixth Circuit decision, and of any potential Ninth Circuit en banc review of Wilson. The Sixth Circuit panel appears to be on solid ground in rejecting the limited understanding of when the Hunter-Seattle doctrine applies in Wilson. Even the dissenters in Seattle, who would have upheld the Washington busing referendum, referred to the problem in the Akron ordinance in Hunter as “making it more difficult to pass legislation in favor of racial minorities.” This certainly seems to be the case with Proposal 2.

More fundamentally, however, the Hunter-Seattle theory raises difficult conceptual questions. The theory makes a great deal of intuitive sense: a law that makes it relatively harder for minorities to gain legislative victories (say, by requiring minority-favorable policies to obtain statewide or constitution-level approval) deprives them of equal access to the political process every bit as much as counting their votes only half as much, or forcing their favored legislation to win super-majority victories. But this rule requires determining when minority-favored policies are in fact subject to such discriminatory treatment. In Seattle, for example, the four dissenters argued that the referendum simply reflected the people’s decision to limit busing at the state level, much as other education decisions had been made at that level. According to the dissenters, the majority dictated the government structure of Washington State by requiring that, once some education policies involving race were made at the local level, they could not be preempted by state-level regulation. The logical pull of the Hunter-Seattle theory remains: surely one has reason for concern if state government is restructured (via legislation or referendum) so as to disadvantage minorities. However, it also seems anomalous to find a constitutional violation when the people of a state deem an issue important enough to decide at the state rather than local level, or at the constitutional rather than statutory level.

Whatever one may think of the theory underlying Hunter and Seattle, it is likely that today’s Court is not particularly enthusiastic about it. Today’s Court is much less prone to aggressive protection of minority rights than was the 1982 Court that decided Seattle (and even then by only a one-vote margin). It is even more ideologically distant from the late Warren Court that decided Hunter. In 1996, the Court — again more liberal than today’s — declined an opportunity to apply Hunter and Seattle to Colorado’s Amendment 2, preferring instead to strike it down in part on the innovative and controversial ground that it constituted a per se violation of equal protection in Romer v. Evans. The Court’s rejection of the Hunter-Seattle route may reflect other considerations or, quite possibly, a discomfort with that theory. If either the Sixth or Ninth Circuit rules for the plaintiffs based on the Hunter-Seattle reasoning, it would not be surprising to see the Supreme Court grant certiorari to consider cutting the doctrine back or doing away with it altogether.

William Araiza is a Professor of Law at Brooklyn Law School. He teaches constitutional and administrative law. He has served as a board member of the Western Law Center for Disability Rights in Los Angeles, and is a member of the Los Angeles County Bar’s Sexual Orientation Bias Committee, and is currently on the Rulemaking Committee of the American Bar Association’s Section on Administrative Law.

Suggested citation: William Araiza, Affirmative Action and Equal Protection in College Admissions, JURIST – Forum, Mar. 5, 2012, http://jurist.org/forum/2012/03/william-araiza-proposition-209.php.