Daily Read: Sheryll Cashin's "Place Not Race"
ConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."
Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.
Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny. But Cashin's slant is different. For Cashin, it isn't necessarily that we are post-racial. Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."
An interesting read for anyone considering affirmative action, race, and equality.
Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution.
The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.
Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).
it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?
Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.
Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.
And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.
JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.
JUSTICE SCALIA: It's the prohibition of racial classifications.
MR. ROSENBAUM: No, Your Honor.
JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?
In that sense, the 14th Amendment itself is a racial classification, right?
To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement. Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.
JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."
Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain. It seems unlikely that it will have a different ultimate outcome.
What if Supreme Court Opinions Were Anonymous?
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
In a 7-1 decision (recall Justice Kagan is recused) and after an extended wait from last October's oral argument, the Court reversed the Fifth Circuit's opinion in Fisher v. University of Texas rejecting an equal protection challenge to the university's affirmative action program.
Kennedy's opinion for the Court leaves affirmative action under Grutter v. Bollinger in tact, but holds that the Fifth Circuit did not apply strict scrutiny in a sufficiently rigorous manner. Recall that in Fisher, University of Texas argued that race was only a "factor within a factor." But for Kennedy, this was not sufficient. In some ways, Kennedy's opinion validates the "dissental" from en banc review of the controversial Judge Edith Jones.
Indeed, Kennedy stated that "The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts."
Justice Thomas, concurring, would reverse Grutter v. Bollinger and Justice Scalia, in a paragraph concurrence, stated that Fisher did not ask Grutter to be overruled.
I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus, followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student- body diversity, and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives.
In sum, Fisher glosses but does not essentially change affirmative action doctrine. It makes the narrowly tailored prong more difficult to meet, and may approach "fatal in fact," but it does leave leeway for a fact-intesive showing by a university regarding its use of race.
And it does not end the affirmative action issue. Recall that the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action in which a majority of the en banc Sixth Circuit held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.