Legal Commentary

What should a law professor think of judge?s refusal to enforce plainly applicable doctrines simply because those doctrines are politically unpalatable? The ongoing litigation against my old academic home in Coalition to Defend Affirmative Action v. Regents of University of Michigan raises precisely this question. The plaintiffs are challenging the constitutionality of a state constitutional amendment (?Proposition 2?) banning the University of Michigan?s affirmative action programs. The district court has ruled against the plaintiffs, and the briefs have been filed in the Sixth Circuit. But one suspects that the doctrinal niceties of the case are dwarfed by the following obvious political reality: 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.

At issue in the case is whether Michigan?s affirmative action ban falls afoul of the slippery equal protection doctrine of Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) invalidates this state constitutional ban on affirmative action (?Proposition 2?). These cases have come to stand for the principle that state law may not ?allocate governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.? Washington, 458 U.S. at 469. Invoking this principle, Hunter struck down a city charter amendment barring the city council of Akron from enacting Fair Housing ordinances prohibiting discrimination on the basis of race. Likewise, Washington struck down a state-wide ballot initiative prohibiting school districts from adopting race-based student assignments not required by the Fourteenth Amendment.

As a purely doctrinal matter, it is difficult to see how this doctrine should not also result in the invalidation of a state constitutional ban on affirmative action. In upholding Prop. 2, Judge David Lawson argued that, unlike Michigan?s affirmative action programs, ?racial integration programs [like Seattle?s busing program] do not presumptively offend the Equal Protection Clause? and that ?[race-based] [d]esegregation [in K-12 education] is constitutionally required in certain instances? whereas ?the Supreme Court has never held that affirmative action is required, and Grutter made it clear that it is barely tolerated? (Pages 5-6 of Judge Lawson?s opinion denying plaintiffs? motion to alter or amend judgment). None of these arguments are very persuasive in the wake of Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), in which the Court held that race-based student assignments in K-12 education are now just as suspect as any other race-based classifications. If Washington?s ban on (presumptively unconstitutional but sometimes permissible) race-based busing is unconstitutional because that ban ?mak[es] it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,? then it is hard to see why Michigan?s ban on (presumptively unconstitutional but sometimes permissible) affirmative action is not equally an infringement on these minorities? power to achieve (admittedly suspect) legislation.

But the doctrinal details are obviously beside the point: It is hard to avoid the conclusion that Judge Lawson simply could not swallow the idea that Michigan?s voters cannot get rid of affirmative action if they so desire. Was this lawless behavior, or was it a judge?s legitimate (albeit clumsy) effort to reconcile norms of federalism and popular sovereignty with a doctrine that seemed to cut too close to those constitutional values?

After the jump, I?ll offer a couple of reasons why federalism and popular sovereignty might not be offended by invalidating initiatives like Prop 2 on Hunter-Seattle grounds. But my larger question is whether readers believe that it is appropriate for an inferior court to take such big structural considerations into account to ?construe? and limit a precedent that otherwise seems plainly applicable.

On the specific question of whether the Hunter-Seattle doctrine, rightly understood, interferes inappropriately with federalism, I (a certified federalism nut) think that the question is more uncertain than many allow. The doctrine, after all, does not prevent Michigan from prohibiting affirmative action programs. If the state?s voters want to create a comprehensive code for public universities listing the factors that can play a role in university admissions but leaving out race, then they are free to do so so far as Hunter-Seattle is concerned. The Hunter-Seattle problem arises only because the state has set up a system of administrative discretion in which (for instance) the University of Michigan?s regents have broad discretion to decide whether or not to consider any number of educationally tangential factors ? alumni status, geographic origin, poverty, professional experience, extra-curriculars like jazz band or debate club, etc ? but must ignore any plea by their constituents to consider race. This is the sense in which Prop 2 is (in Justice Harlan?s words from his Hunter concurrence) akin to ?dilut[ing] [a] person?s vote or giv[ing] [a] group a smaller representation than another of comparable size.? If Michigan wants to amend their constitution to get rid of the Board of regents and turn their functions over to the state legislature, they are free to do so under Hunter/Seattle. Likewise, Michigan?s voters could simply enact a ?university admissions code? that left out race altogether from the list of permissible factors without offending Hunter/Seattle. But, having given their regents enormous discretion over university policy, Michigan's voters cannot then gerrymander an exception to this broad jurisdiction just for issues especially beneficial to a racial segment of the population.

Is such a doctrine consistent with federalism? Consider the following defense of the doctrine in terms of federalism. Federal regimes are valuable because they protect institutions (states) that are politically accessible to a lot of constituencies. Each state is not a monolithic entity but rather a collection of counties, municipalities, special districts, public universities, and literally hundreds of elected executives (e.g., insurance commissioners, D.A.s, sheriffs, drain commissioners, etc), all unified by a constitutional framework that allows them to make coherent policy without treading too injuriously on each others? toes. These polyglot entities are superior (in my mind) to the federal government precisely because they radically reduce the costs of political participation by shrinking the size and multiplying the number of electoral districts: The average member of the U.S. Representatives raised roughly $2 million in 2005-2006, while expenditures in state elections tend to be much smaller, ranging from $10,000 per representative in states like Idaho that have electoral districts with very small electoral districts to $500,000 in California?s much larger state senate districts.

But the democratic legitimacy of this highly permeable system is undermined by ?carve-outs? that eliminate the ability of certain constituencies ? especially racial ones ? to take advantage of the access that the system affords. Hunter-Seattle can be regarded as a safeguard against this sort of carve-out by requiring that states' voters or legislatures define the powers of the state's institutions without reference to the interests of particular groups. For instance, if the state wants to centralize municipal benefits policy in, say, a single administrative board, then it can do so under Hunter-Seattle. But a state?s banning cities only from providing same-sex employment benefits comes close to offending the principle of equal political access (assuming that the Hunter-Seattle doctrine extends beyond the racial context).

In this sense, Hunter-Seattle is consistent with that other Hunter doctrine -- Hunter v. City of Pittsburgh, 207 US 161 (1907), which declared that cities lack constitutionally protected property or contract rights against the states that create them. Hunter-Seattle preserves this state discretion to centralize vast swathes of policy-making (university admissions, public employee benefits, etc) just so long as the state paints with a reasonably impartial brush.

I do not pretend that these formulations resolve the predictable questions of what it means for jurisdiction to be defined with "reasonable" impartiality. But I do not think that the threat to federalism or popular sovereignty posed by Hunter-Seattle is plain enough to justify a lower federal court's evasion of the doctrine's plain terms.