By LEROY GOLDMAN
Columnist

Published: Tuesday, October 22, 2013 at 4:30 a.m.

Affirmative action back in cross hairs 

“Equal Justice Under Law” are the words carved in the white Vermont marble on the west front of the U.S. Supreme Court. They paraphrase the Equal Protection Clause of the 14th Amendment.

The court’s interpretation of that clause is at the heart of the nation’s struggle to define the proper bounds of affirmative action. The struggle has been bitterly controversial. It is a work in progress and not the zero-sum game that too many would like it to be.

Perhaps the best way to grasp the opposing views of how to define what’s permissible under the aegis of the Constitution respecting affirmative action is to contrast the words of former Supreme Court Justice Harry Blackmun with those of Chief Justice John Roberts.

On June 28, 1978, in a fractured plurality decision, the Supreme Court ruled in the case of Regents of the University of California v. Bakke that affirmative action permitted race to be used as a factor in college admissions. In his opinion, Justice Blackmun’s stated, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.”

On June 28, 2007, in another fractured plurality decision, the Supreme Court ruled in the case of Parents Involved in Community Schools v. Seattle School District No. 1 that the school desegregation plans of both Seattle and Louisville, Ky., were unconstitutional because they were not sufficiently narrowly tailored. In his opinion, Chief Justice Roberts stated, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

What is incontrovertibly clear is that Blackmun’s view and Roberts’ view cannot coexist. The fundamental question going forward is whether Roberts will be able to put up or whether he will have to shut up. When we know the answer to that question, we will know the outcome of the war over affirmative action, not simply the outcome of one of its many battles.

Comes now the case of Schuette v. Coalition to Defend Affirmative Action, the next battle in the war. The high court heard oral arguments on Schuette last Tuesday.

Writing in SCOTUSblog, Editor Amy Howe recently stated, “in late June, the court issued its decision in Fisher v. University of Texas at Austin, a challenge to the university’s consideration of race in its undergraduate admissions process. The court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy.”

In Schuette, Howe opined, the high court will confront the sequel to the Fisher case, stating, “In Fisher the court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette, the issue is whether the Constitution allows a state to do the opposite: prohibit universities from using race as a factor.”

Schuette’s seeds were sown in 2006 when voters in the state of Michigan approved Proposal 2, a constitutional amendment that blocks the state from using race or gender in public education, employment and contracting. The proposal was adopted by a whopping 58 percent to 42 percent margin. Seven other states have adopted similar prohibitions: Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

The challengers of Proposal 2 were successful last November in persuading the 6th U.S. Circuit Court of Appeals that Proposal 2 skewed the political process against the interests of minorities and thus violated the 14th Amendment’s Equal Protection Clause. They relied upon what is known as the “Political Process Theory,” which is based on Supreme Court rulings in Hunter v. Erickson (1969) and Washington v. Seattle School District No. 1 (1982). The 6th Circuit’s 8-7 decision aligned the eight judges chosen by Democratic presidents in opposition to the seven judges chosen by Republican presidents.

It’s likely that Justice Anthony Kennedy’s vote will decide Schuette. And his line of questioning during the oral arguments last week suggests that he may be looking for a way to distinguish Schuette from the prior precedents the court laid down in the 1969 and 1982 cases, and upon which the eight justices of the 6th Circuit relied.

In SCOTUSblog, Lyle Denniston wrote, “Kennedy began looking for factual differences between the prior cases and the one now before the court. And then he showed real fascination with suggestions by Michigan’s solicitor general, John J. Bursch, as to how the court could distinguish the prior precedents without having to overrule them.”

That indeed may be the way that Justice Kennedy threads the eye of the needle in this case. If so, it will tell us that the battles will continue, but the outcome of the war hangs in the balance. And it will tell us that Chief Justice Roberts has not yet been able to persuade a majority of the court that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Roberts may have less time than he thinks to create that majority. Justice Kennedy, the court’s “swing justice,” is 77. If the suicidal obsession of the Republican Party hands the nation yet another Democratic president in 2016, Kennedy will be 88 by the end of that president’s second term. Tempus fugit, Mr. Chief Justice.

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