Wall Street Journal Misinforms On Civil Rights Case That Hasn't Been Considered Yet

Before the Supreme Court even heard oral arguments in Schuette v. Coalition to Defend Affirmative Action, potentially the nation's next major civil rights decision, The Wall Street Journal was already spreading misinformation about the case and the issues at stake.

In an October 14 editorial, The Wall Street Journal mislabeled the affirmative action ban challenged by the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund, miscounted the number of justices that will decide Schuette (Justice Elena Kagan recused herself, having previously worked on the case), and mistakenly conflated a political restructuring case with a different strand of affirmative action cases:

Does it violate the U.S. Constitution's ban on racial discrimination for a state to ban racial discrimination? Most Americans would think not, but that's essentially the bizarre question before the Supreme Court on Tuesday as it considers a legal challenge to a 2006 Michigan referendum.

In Schuette v. Coalition to Defend Affirmative Action, the plaintiffs claim that Michigan violated the U.S. Constitution's Equal Protection Clause when 58% of Michigan voters supported Proposition 2 [sic], which amended the state constitution to prohibit discriminating by race in education, government contracts or hiring.

The Coalition for Affirmative Action argued that Prop 2 disproportionately burdened minorities in education. Their odd logic is that while advocates of, say, alumni legacy preferences would only need to lobby a school's admissions officials, advocates of race preferences under Prop 2 would have to amend the state constitution. So not discriminating by race discriminates by race -- got it?


It's only fair that the Supreme Court fix this legal mess that it did so much to create. Michigan's 2006 referendum was a response to the High Court's misguided 2003 decision in Grutter v. Bollinger that allowed schools to consider race as a factor in admissions for the purpose of diversity. Proposition 2 [sic] was the political response from a citizenry that still reveres the principle of color-blind opportunity.

The Schuette case ought to be an easy call for the Justices, and the ruling should be 9-0. Given the fraught politics of race, even on the High Court, it may end up being 5-4. But the failure to overturn the Sixth Circuit would enshrine in the law the concept that American voters can't choose to outlaw discrimination on the basis of race. Lincoln and Frederick Douglass would turn in their graves, if they didn't leap right out of them.

What the WSJ calls the “odd logic” of the plaintiffs isn't odd at all. The legal argument of the ACLU/NAACP (joined by multiple legal scholars, including Harvard Law Professor Laurence Tribe and University of California Irvine School of Law Dean Erwin Chemerinsky) is, in fact, solidly in line with Supreme Court precedent. The WSJ has assumed that, because Schuette is tangentially related to affirmative action, it must be an opportunity for the justices to revisit the holding in Grutter -- but the cases just aren't the same.

Representing current and prospective University of Michigan Law School students in addition to the faculty, the ACLU/NAACP effort challenged the 2006 affirmative action ban under decades-old constitutional law that holds state political processes may not be restructured in a way that specifically disadvantages persons of color. Because Proposal 2 was an amendment to the state constitution that removed race and sex - and only those factors - beyond the normal level of consideration in university admissions, the U.S. Court of Appeals for the Sixth Circuit twice held that the affirmative action ban violated the “political restructuring” doctrine.

In other words, under the U.S. Constitution, Michigan can prohibit affirmative action policies, just not in a way that made it uniquely difficult for minority students to challenge that ban. From the ACLU/NAACP brief on the merits:

Michigan was free to maintain the race-conscious admissions program upheld in Grutter or to abandon it. Proposal 2, however, effected far more than a mere repeal of race-conscious legislation. While otherwise leaving intact the Boards of Regents' plenary authority over university affairs, Proposal 2 stripped the Boards' power only with respect to an inherently racial issue and entrenched that issue at a higher and more burdensome level of political decision-making.


The political restructuring doctrine is a necessary bulwark of equal protection jurisprudence: it ensures that the debate over whether to adopt constitutionally permissible race-conscious programs does not lead to racial balkanization if one side attempts to racially gerrymander the political process to rig the outcome in its favor. It also reflects a clear and narrow rule: when race is the predominant factor explaining a state's decision to establish a distinct political process, the governmental action creates a racial classification subject to strict scrutiny.

Furthermore, despite the WSJ's dubious assertion that Proposal 2 prevents racial discrimination, it has, in fact, been more difficult for certain Michigan residents to participate in the political process on account of their race. Since Proposal 2 passed in 2006, enrollment of African-American students at state schools is down about 30 percent, and enrollment of other minority groups has also dropped off. Because Proposal 2 amended Michigan's state constitution, rather than just university admissions policies, minority students are unable to petition the university's board of trustees for change -- they must petition the state legislature to amend the constitution instead.

No other group of students -- like those with alumni connections (e.g. legacy status) -- is required to take such extraordinary measures to have their voices heard in the admissions process.

Photo by Flickr user Mark Fischer