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Sunday, July 03, 2011

The Sixth Circuit's ruling on Affirmative Action & Holmes' "Prophecy" Theory of the Law

A panel of the Sixth Circuit ruled yesterday that Michigan's state constitutional ban on affirmative action violates the Equal Protection clause as construed in Washington v. Seattle School District. SCOTUS held in Seattle School District that the voters of Washington could not prohibit school districts from enacting voluntary busing programs while allowing school assignment to be based on any number of non-racial reasons, because (458 U.S. 457, 474-75):

by specifically exempting from Initiative 350's proscriptions most nonracial reasons for assigning students away from their neighborhood schools, the initiative expressly requires those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action. As in Hunter [v. Erickson,393 U.S. 385 (1969)] then, the community's political mechanisms are modified to place effective decision-making authority over a racial issue at a different level of government. In a very obvious sense, the initiative thus 'disadvantages those who would benefit from laws barring' de facto desegregation 'as against those who . . . would otherwise regulate' student assignment decisions; 'the reality is that the law's impact falls on the minority.' Hunter v. Erickson, 393 U.S., at 391.

I posted on this case two years ago (the wheels of justice grinding very slowly in the Sixth Circuit), arguing that Seattle School District's striking down a state-wide ban on voluntary busing programs was indistinguishable from Michigan's state-wide ban on state universities' affirmative action programs. I stand by that view today: The Sixth Circuit panel faithfully followed the governing SCOTUS precedent.

But should the Sixth Circuit follow Oliver Wendell Holmes' famous declaration about the law being "prophecies of what the courts will do in fact, and nothing more pretentious"? If so, then perhaps they ought to reverse the panel decision en banc. As a matter of sheer prediction, after all, SCOTUS today -- having a very different membership and political ideology -- will most likely qualify or overrule Seattle School District and uphold Michigan's ban on affirmative action. To quote my earlier post, "No court will ever declare that a state’s voters are constitutionally prohibited from jettisoning affirmative action if they so desire, because judges regard the voters’ power to control such controversial policies as essential to those policies' democratic legitimacy."

I am inclined to agree with Mike Dorf's cogent analysis in Prediction and the Rule of Law, a 1995 UCLA law review article in which Dorf concludes that (at page 655) "no court ought to be anybody's "ventriloquist's dummy." If the Sixth Circuit's judges agree, then they will let the panel's decision survive en banc, and let the SCOTUS police its own precedents. In any case, I know of no other recent case that has so highlighted the distinction between Holmes' "prophecy" theory of the law and conventional doctrinal analysis of a precedent. If the Sixth Circuit does what I take to be the right thing and denies a rehearing en banc, then the SCOTUS will almost certainly grant cert, leading to a guaranteed SCOTUS donnybrook during the 2012 Presidential elections.

Posted by Rick Hills on July 3, 2011 at 11:28 AM | Permalink

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I have a few things to add:

Regarding Dr. Grishka's comment, the Louisiana Supreme Court ruled that the Louisiana constitution prohibits any affirmative action.

http://scholar.google.com/scholar_case?case=12881617985461946741&hl=en&as_sdt=2,5&as_vis=1

I will especially note that in relation to University to Michigan affirmative action specifically, the Hunter-Seattle doctrine can have no logical relevance for this reason: Grutter allowed the affirmative action based on DIVERSITY, not as a discrimination remedy (The University never claimed that it had discriminated against minorities). Ninth circuit Judge A. Wallace Tashima, who had joined Judge William Albert Norris in dissenting from the ninth circuit denial of an en banc hearing to prop. 209, recognized this aspect of the Hunter-Seattle doctrine in writing Valeria v. Davis, upholding prop. 227 (California's ban on bilingual education).

Asher appears to have partially understood my argument. However, my references to near constitutional intolerability are derived from intimations of the majority opinion in Grutter (and explicit declarations in Aderand and others), not just from the dissenters. Grutter's call for a time limit suggests a special constitutional status for affirmative action.

Another way to explain it is this: Bussing was not regarded as preferential treatment (in fact, I do not think it would be correct to say that the court now regards it is as such: it may be subject to strict scrutiny, but not because it is preferential treatment). The question is "why WOULD the Hunter-Seattle doctrine be so expansive as to cover PREFERENTIAL as opposed to EQUAL treatment? What support exists for that proposition? It is no answer to claim that such a distinction is illusory. If preferential treatment were the same as equal treatment, the former would be required, not barely tolerated.

I also meant to attack the notion that while the political structure doctrine did not cover affirmative action before Parents Involved, it does after Parent's involved. I understood your first post as perhaps suggesting that. That notion could not be more nonsensical. It is far more reasonable to infer that Parents Involved calls into question the vitality of the 1982 precedent.

Ultimately, the most important quote is this:

"Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop."

This in no way suggests that there is any constitutional infirmity with anti-affirmative action measures. When one combines this quote with the court's denial of certiorari to an appeal of Coalition of Economic Equity v. Wilson (upholding prop. 209) in 1997, one senses a strong signal that the court does not want lower courts to extend the Hunter-Seattle doctrine to cover racial preferences.

In conclusion, I would like the U.S. Supreme Court to take this case whatever the outcome of any en banc decision to overturn Seattle and stop BAMN from clogging up the courts.

Posted by: Mike | Aug 17, 2011 12:51:36 AM

Here's my question. Suppose the Michigan Supreme Court were to declare that the Michigan Constitution (even pre-Prop 2) actually prohibited affirmative action. (Because the State Constitution's Equal Protection Clause is more robust than the federal one). Such a decision would have the same practical effect as Prop 2, i.e., various state institutions that heretofore could choose to utilize race-based affirmative action would no longer be able to do so. And, of course, minorities would be especially burdened because the only way to reverse this hypothetical decision would be through a constitutional amendment.

Would such a decision of the Michigan Supreme Court be open to the same attack as Prop 2? Would the underlying Michigan Constitutional provision that the Court interpreted in my hypothetical would be? If not then we would be in a bizarre situation that 2 identical provisions in a state constitution may fare differently under the federal constitution depending on when such provisions were adopted. This, I submit, shows the infirmness of the Sixth Circuit's decision.

Posted by: DrGrishka | Jul 6, 2011 2:46:36 AM

Perhaps Mike is suggesting that they're distinguishable because busing isn't (or wasn't, in 1982) nearly constitutionally intolerable. So there's an exception to Seattle, on his view, for stuff that four Justices of the Supreme Court think is unconstitutional. In fact, wasn't that, in large part, the basis of the Ninth Circuit decision that upheld Proposition 209? I think the correct response is that things either are constitutional or not; the fact that a bunch of dissenters say something is unconstitutional doesn't make it "nearly" so, or give states a license to police those dissenters' minority views.

Posted by: Asher | Jul 5, 2011 1:33:57 PM

Mike writes:

I believe, as most judges (include those favoring affirmative action) have, that it is not really correct to suggest the earlier Seattle case "directly controls", given how extraordinary a proposition it is to suggest that nearly constitutionally intolerable racial preferences are in any way constitutionally protected from being placed out of the reach of the democratic process.

Mike, this is a truly glorious non sequitur the sheer effrontery of which does you credit. Why on earth should the question of whether Seattle is controlling turn on whether the proposition for which it stands is "extraordinary"? A case can be a controlling precedent even if it is "extraordinary" or otherwise not correctly decided. Maybe Seattle is an awful, terrible, anti-democratic, deeply silly opinion that forces states to allow their political decision-makers to use racial classifications. So what? What does any of that have to do with whether its (awful, terrible, etc.) reasoning applies to the Michigan anti-affirmative action measure?

Really, if we have reached the state in which lawyers cannot distinguish between whether a precedent is good and whether it applies to a given set of facts, then I fear that we are well and truly lost. I am as Realist as the next guy, but your post so egregiously mixes up what you take to be the Right point of view with what an actual precedent actually says that I almost want to pray for the second coming of Christopher Columbus Langdell to save us all from a mush of Is-Ought confusion.

Posted by: Rick Hills | Jul 5, 2011 9:30:10 AM

I think they'll grant rehearing en banc and reverse, so I doubt the donnybrook you predict will ever arise. As far as deciding cases on the basis of What the Current Court Would Do, Dorf's definitely right. How can the Constitution mean, not what the Court has actually said it means, but what a lower court imagines the current Court would say it means in a case it probably will never hear?

Posted by: Asher | Jul 4, 2011 3:31:11 PM

but only prohibiting them from making that reversal itself more difficult to overturn than other admissions policies. In other words, instead of passing a state constitutional amendment, anti-affirmative action Michiganders should have elected officials to the various Boards that make university policy who would end the program. That way, if the polity changes its mind later, a program benefitting racial minorities has no greater obstacle to enactment than a program benefitting legacies or tubaa players.

This is how I read the opinion; as about fair process, not about affirmative action as such.

Posted by: Praetor | Jul 3, 2011 7:42:53 PM

To return to the question in the post, there seems to be an interesting parallel with Erie here. If state law is in flux, the lower federal courts are invited to imagine the future; if federal law is in flux, the same courts must adhere to announced SCOTUS precedent without anticipation. The juxtaposition of these doctrines looks to me like relative disrespect for state holdings, to the extent SCOTUS thinks anticipatory overrulings infringe on its prerogatives.

Posted by: Justin Long | Jul 3, 2011 7:07:29 PM

This is a bit away from the thrust of your post, but I read the 6th Cir opinion not as prohibiting the voters from abandoning affirmative action, but only prohibiting them from making that reversal itself more difficult to overturn than other admissions policies. In other words, instead of passing a state constitutional amendment, anti-affirmative action Michiganders should have elected officials to the various Boards that make university policy who would end the program. That way, if the polity changes its mind later, a program benefitting racial minorities has no greater obstacle to enactment than a program benefitting legacies or tubaa players. Do you read the case differently? (Of course, I speak only for myself and not for my law school, university, etc, etc).

Posted by: Justin Long | Jul 3, 2011 6:57:25 PM

This decision is unlikely to stand on appeal.

The vast majority of courts have rejected these challenges (including the California Supreme court last August). At the time of the political structure was held to apply to school desegregation (Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982)), those efforts were not seen as invidious. Now, school racial balancing is seen as invidious (Parents Involved in Community Schools v. Seattle School District No.1), which calls into the question the vitality of the 1982 precedent. It does not support the claim that because racial balancing schemes and affirmative action are supposedly constitutionally indistinguishable, the political structure now applies to racial preferences. In fact, the two are still not constitutionally indistinguishable; as Parents Involved did not absolutely foreclose the possibility of court-ordered desegregation plans, even though there have never been court-ordered affirmative action plans, for the reasons below.

Affirmative action is and has always been held to be invidious. Grutter v. Bollinger did not imply differently. Otherwise, Justice O’Connor would not have suggested a time limitation. Further, she referred approvingly to states that prohibit affirmative action as laboratories, which does not indicate that the Supreme Court considers these amendments unconstitutional.

I believe, as most judges (include those favoring affirmative action) have, that it is not really correct to suggest the earlier Seattle case "directly controls", given how extraordinary a proposition it is to suggest that nearly constitutionally intolerable racial preferences are in any way constitutionally protected from being placed out of the reach of the democratic process.

What is predictive of the outcome of an en banc hearing is that when District Judge David Lawson (appointed by Bill Clinton) originally stayed enforcement of the proposition in late 2006, he was reversed at that time by the sixth circuit. The reason was that the sixth circuit judges handling the issue at the time believed that the political structure arguments had no merit.

It clear from that action and the tone of Judge David Lawson's 2008 opinion granting summary judgment that he personally favors affirmative action. That is why I find this writer's accusation of lawlessness so bizarre. I wonder if this writer has even read his opinion at all. Here is a telling quote:

"Whether one accepts or rejects Connerly’s view that there is virtue in tossing minority students into the deep end and letting them sink or swim on their own (regardless that some might drown in the meantime), or the more craven approach of Gratz that affirmative action deprives her of her own slice of the pie, both of these viewpoints illustrate that racial discrimination is not the only rationale behind Proposal 2."

http://www.cir-usa.org/cases/bamn_v_granholm.html

The above link has his opinion.

That was strongly worded. Indeed, it seems as if he personally attacked Jennifer Gratz. Could it be any clearer that Judge Lawson clearly would have preferred to invalidate the proposition? He just realized that the law did not support the outcome the plaintiffs (BAMN, NAACP, students, etc.) desired.

As explained earlier, it is especially unlikely that the plaintiffs would win in the U.S. Supreme Court. The Justice Kennedy would almost certainly vote against BAMN. He may not believe that constitution requires absolute race neutrality, but he believes that individual racial classifications are dangerous and has voted against racial preferences in every major case (Grutter v. Bollinger, Parents Involved, Ricci v. DeStefano, etc. ) and would be unlikely to strike down this measure. It is not clear that they would even win the votes of the four liberal justices. These justices have never held that these preferences are in any way required.

As for policy considerations, I will note that all these comparisons to athleticism, poverty, veteran status, and others do not involve suspect classifications. They should not even be raised.
What is more, anyone of any race with those non-suspect traits can seek preferential treatment based on that the desired non-suspect trait.
Conservatives would not embrace "fair process" arguments. No one has any legitimate expectation of being able to use the political process to attain preferential treatment based on a suspect classification. period.

Posted by: Mike | Jul 3, 2011 6:52:11 PM

Unfortunately, as I point out in my article, Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L. Rev. 39 (1990), the Supreme Court apparently does not want the lower courts to prophesy. In Rodriguez de Quijas v. Shearson/American Express, Inc., the majority wrote: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions."

Posted by: Steve Bradford | Jul 3, 2011 1:50:59 PM

Is this more likely to be received as an affirmative action opinion, or an opinion about political process? I can see conservatives embracing fair process arguments while disagreeing on the policy merits of affirmative action.

Posted by: Praetor | Jul 3, 2011 1:46:06 PM

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