XIV Foundation Amicus Brief Supporting MCRI

7/28/2019 XIV Foundation Amicus Brief Supporting MCRI

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No. 12-682

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THESupreme Court of the United States

BILL SCHUETTE,MICHIGANATTORNEYGENERAL,Petitioner,

v.

COALITION TO DEFENDAFFIRMATIVEACTION,INTEGRATION AND IMMIGRANT RIGHTS AND

FIGHT FOR EQUALITYBYANYMEANS

NECESSARY(BAMN),et al.,Respondents.

On Writ of Certiorari to theUnited States Courts of Appeals

for the Sixth Circuit

BRIEF OF THE XIV FOUNDATION ANDSUPPORTERS OF CIVIL RIGHTS INIATIVES

IN MICHIGAN, ARIZONA, CALIFORNIA,

COLORADO, NEBRASKA, NEW HAMPSHIRE,AND WASHINGTON, ASAMICI CURIAE

IN SUPPORT OF PETITIONERS

* Counsel of Record

ROBERT N.DRISCOLL*FRIEDLANDER MISLER, PLLC5335 Wisconsin Avenue,Suite 600Washington, DC 20015(202) 872-0800

[email protected]

July 1, 2013


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(i)

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ................................ ii

INTERESTS OFAMICI CURIAE ...................... 1

SUMMARY OF THE ARGUMENT .................... 2

ARGUMENT ........................................................ 10

I. Hunter andSeattle, the lynchpins of theSixth Circuit decision, are no longergood law and should be overturned ......... 10

II. The Michigan Civil Rights Initiativeis Distinguishable from the ChallengedLaws inSeattle andHunter...................... 15

A. There is no discriminatory intent,racial classification or racial focusto the MCRI ......................................... 16

B. MCRI is a broad antidiscriminationamendment that does not target aparticular local law and thus doesnot restructure a political process ...... 18

C. Proponents of racial preferences arenot a politically powerless groupsimilar to the plaintiffs inSeattle and

Hunter .................................................. 20

D. Because racial preferences policies inhigher education are constitutionalonly when their benefits flow to allpeople and if a racial preferenceprogram was not designed for thepurpose of benefitting the minority,

the political restructuring doctrinecannot apply ........................................ 23

CONCLUSION .................................................... 25


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TABLE OF AUTHORITIESCASES Page

Adarand Constructors v. Pena, 515 U.S. 200(1995) ...........................................................passim

Arlington Heights v. Metro Hous. Dev. Corp.429 U.S. 252 (1977) ...................................... 12

City of Richmond v. J.A. Croson Co., 488U.S. 469 (1989) ...................................... 5, 6, 11, 13

Coal. for Econ. Equity v. Wilson, 122 F.3d

692 (9th Cir. 1997), cert. denied, 522 U.S.963 (1997) ........................................ 4, 7, 14, 15, 18

Coal. to Defend Affirmative Action v. Regentsof Univ. of Mich. 701 F.3d 466 (6th Cir.2012).............................................................passim

Coral Construction, Inc. v. City & County ofSan Francisco, 235 P.3d 947 (Cal. 2010) ..... 5, 15

Crawford v. Bd. of Educ., 458 U.S. 527(1982) ............................................................ 3

Fisher v. Univ. of Texas at Austin, 570 U.S.___, slip op. (2013) ........................................ 9, 21

Gratz v Bollinger, 539 U.S. 244 (2003)...........passim

Grutter v. Bollinger, 539 U.S. 303 (1993) .......passim

Hunter v. Erickson, 393 U.S. 385 (1969) ........passim

Metro Broadcasting v. FCC, 497 U.S. 547(1990) ........................................................... 5, 6, 12

Miller v. Johnson, 515 U.S. 900 (1995) ........... 11

Parents Involved in Cmty. Sch. v. Seattle

Sch.Dist.No. 1, 551 U.S. 701 (2007) ........... 6, 17


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iii

TABLE OF AUTHORITIESContinuedPage(s)

Regents of the University of California v.Bakke, 438 U.S., 265 (1978) ......................... 10, 23

San Antonio Independent School District v.Rodriquez, 411 U.S. 1 (1973) ....................... 8, 20

Shaw v. Reno, 509 U.S. 630 (1993) ................. 12

Shelley v. Kraemer,334 U.S. 1 (1948) ............. 13

Washington v. Seattle School District No. 1,

458 U.S. 457 (1982) .....................................passim

Washington v. Davis, 426 U.S. 229, 239(1976) ............................................................ 3

CONSTITUTION

Mich. Const. art. I, 26 ..................................passim

U.S. Const. amend. V .................................... 6, 12, 13

U.S. Const. amend. XIV ..................................passim

STATUTES

Fair Housing Act of 1968, 42 U.S.C. 3604(b) ........................................................ 17

Equal Credit Act, Pub. L. 94-239, 90 Stat.251 (1974). .................................................... 18

OTHER AUTHORITIES

N.H. HB 0623 ................................................... 2


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INTEREST OFAMICI CURIAE

1

Amicus curiae the XIV Foundation (XIV) is dedi-cated to the principle that equal treatment is theessence of civil rights and that all people are entitledto civil rights. Named after the 14th Amendment,

XIV aims to teach the necessity of fair and equaltreatment by telling the personal stories of thoseharmed by discriminatory policies. XIV was foundedby Jennifer Gratzthe plaintiff in Gratz v Bollinger,539 U.S. 244 (2003), who has dedicated her life topromoting the importance and value of equal protec-

tion under the law. After this Courts decision inGratz and its companion case, Grutter v. Bollinger,539 U.S. 303 (2003), Ms. Gratz was a founder andthen leader of the Michigan Civil Rights Initiative,the group that placed the initiative of the same nameon the ballot in Michigan, leading to the amendmentto the Michigan Constitution that is the subject ofthis litigation. Gratz also played significant roleseducating and mentoring leaders in other states toencourage them to advocate for passage of their owncivil rights initiatives.

For obvious reasons, Gratz, a one-time victim of theUniversity of Michigans unconstitutional program ofracial classification in admissions, has an interest inpreserving the Michigan Civil Rights Initiative (now

1This amicus brief is filed with the consent of the parties.

Counsel for the Petitioners and Respondents have granted

blanket consent for the filing of amicus briefs in this case, in

accordance with this Courts Rule 37.3(a). Pursuant to Rule

37.6, the amici submitting this brief and their counsel hereby

represent that no party to these cases or their counsel authoredthis brief in whole or in part, and that no person other than

amici and their counsel paid for or made a monetary contribu-

tion toward the preparation and submission of this brief.


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Mich. Const. art. I, 26) (MCRI), a sweeping civilrights amendment that prohibits discrimination onthe basis of race, gender, national origin, or color bythe State of Michigan in contracting, employment,and education. The MCRI requires precisely theequal treatmentwithout regard to race, gender, ornational originthat the XIV Foundation wasfounded by Ms. Gratz to promote.

The XIV Foundation is joined in this brief byadditional amicileaders from around the countrywho have and continue to promote legislation or con-

stitutional amendments that, like the MCRI, seek torequire equal treatment under the law withoutregard to race or gender.

2

SUMMARY OF THE ARGUMENT

All of the amici have aninterest in promoting both equal treatment under thelaw and preserving their rights to seek to requireequal treatment through the democratic process.

Michigans Civil Rights Initiative was passedoverwhelmingly (by a 58 to 42 margin) by Michigan

voters through the ballot initiative process in

November of 2006. The amendment generally pro-hibits discrimination against, or granting prefer-ential treatment in favor of, individuals on the basisof race, sex, color, ethnicity, or national origin with

2Larry Arnn (Current President Hillsdale College; Chairman,

California Civil Rights Initiative); Glynn Custred (Author, Cali-

fornia Civil Rights Initiative); John Carlson (Chairman, Wash-

ington Civil Rights Initiative); Leon Drolet (Chairman, Michi-

gan Civil Rights Initiative); Marc Schniederjans (Chairman,

Nebraska Civil Rights Initiative); Jessica Peck (Executive Direc-

tor, Colorado Civil Rights Initiative); Rachel Alexander (Chair-man, Arizona Civil Rights Initiative); and Representative

Gary Hopper (Sponsor, HB 0623, New Hampshire Civil Rights

Initiative).


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respect to public education, public contracting, orpublic employment.See Mich. Const. art. I, 26. Theamendment has not been challenged insofar as itapplies to public contracting and public employment,and with good reasonthis Court has been clear that[t]he central purpose of the Equal Protection Clauseof the Fourteenth Amendment is the prevention ofofficial conduct discriminating on the basis of race.Washington v. Davis, 426 U.S. 229, 239 (1976). Thus,Michigans ban on discrimination (and preferentialtreatment) in public contracting and employment is

fully consistent with this Courts Equal ProtectionClause jurisprudence. It would be paradoxical toconclude that by adopting the Equal ProtectionClause of the Fourteenth Amendment, the voters ofthe State thereby had violated it. Crawford v. Bd. of

Educ., 458 U.S. 527, 535 (1982). It is hard to imagineany litigant seriously arguing that, by imposing ageneral prohibition on racial and gender discrimina-tion in state contracting and employment, the Stateof Michigan has run afoul of the Fourteenth

Amendment.

However, with respect to public education, specifi-cally in the narrow context of use of race in decision-making with respect to admission to Michigans insti-tutions of higher learning, proponents of so-calledaffirmative action, and an en banc majority of theSixth Circuit, have turned the Equal ProtectionClause on its head to conclude that Michigans gen-eral ban on state racial and gender discrimination

violates the Equal Protection Clause by prohibitingracial discrimination in higher education admissions.

Although this case focuses on the ability of institu-tions of higher learning in Michigan to use racialclassifications in their admissions decisions, it does


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not turn on this Courts decision in Grutter, 539 U.S.303, which found certain narrow uses of race inadmissions permissible under certain circumstancesbut certainly not constitutionally required. Id. at 343(the Equal Protection Clause does not prohibit theLaw Schools narrowly tailored use of race . . . .)(emphasis added). Rather, the Sixth Circuitscounterintuitive result stems from its application ofthis Courts decisions inHunter v. Erickson, 393 U.S.385 (1969) and Washington v. Seattle School District

No. 1, 458 U.S. 457 (1982), cases articulating a

political restructuring theory of equal protectionanalysis that the Court has not endorsed in 31 years.The Sixth Circuit reads Hunter and Seattle ascompelling a remarkable conclusion: that voters of astate may not choose, via broad constitutionalamendment barring discrimination, to prohibit theirstate-run universities from discriminating on thebasis of race or gender without running afoul of theEqual Protection Clause. Coal. to Defend Affirmative

Action v. Regents of Univ. of Mich. 701 F.3d 466, 489(6th Cir. 2012) (BAMN) (Those portions of [the

MCRI] that affect Michigans institutions of highereducation violate the Equal Protection Clause.)

The Sixth Circuits decision, which conflicts withboth the Ninth Circuits decision rejecting a nearlyidentical political restructuring challenge to a vir-tually identical California constitutional amendment

3

3Amicus Larry Arn is the Chairman of the California Civil

Rights Initiative.

(also passed by referendum), Coal. for Econ. Equityv. Wilson, 122 F.3d 692 (9th Cir. 1997) (Wilson II),cert. denied, 522 U.S. 963 (1997); as well as the Cali-fornia Supreme Courts decision interpreting thesame amendment Coral Construction, Inc. v. City &


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County of San Francisco, 235 P.3d 947 (Cal. 2010),cannot stand.

First, the Sixth Circuit decision rests entirely onthe continued vitality ofSeattle and Hunter and thepolitical restructuring doctrine derived from thosecases. ButSeattle andHunter themselves should beoverruled because both cases require the Court toapply a different equal protection standard to afacially-neutral statute depending on whether aminority or majority racial group benefits from aparticular law (or is harmed by a facially-neutral law

modifying it) and, thus, cannot be squared with theCourts decision in City of Richmond v. J.A. CrosonCo., 488 U.S. 469 (1989), which held that the stand-ard of review under the Equal Protection Clauseis not dependent on the race of those burdened orbenefited by a particular classification. Id. at 494(plurality opinion); id. at 520 (Scalia, J., concurringin judgment).

In this respect, Seattle and Hunter are analogousto Metro Broadcasting v. FCC, 497 U.S. 547, 564-65

(1990), in which this Court held that the level of scru-tiny to be applied to federal government programsemploying racial classifications depended on whethersuch programs were designed to benefit minoritygroups historically subject to discrimination (andwere therefore benign, triggering only intermediatescrutiny) or not (therefore triggering strict scrutiny).

Id. But this Court has since rejected the MetroBroadcasting approach, explicitly overruling it inAdarand Constructors v. Pena, 515 U.S. 200, 227(1995), and has, sinceAdarand, consistently rejected

any argument that the type of equal protectionanalysis employed when evaluating an equal protec-tion challenge is somehow dependent on whether


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minority or majority interests are at stake. See,e.g., Gratz, 539 U.S at 270;Parents Involved in Cmty.Sch. v.Seattle Sch. Dist. No. 1, 551 U.S. 701, 720(2007).

Seattle and Hunter are also both decisions thatundertook analysis of legislations effect on ethnic orracial groups, rather than on individuals, and, there-fore, are in conflict with this Courts more recentEqual Protection Clause cases recognizing the basicprinciple that the Fifth and Fourteenth Amendmentsto the Constitution protect persons not groups.

Adarand, 515 U.S. at 227 (emphasis in original). Forthis reason as well, it is time to revisit, and overrule,

Seattle andHunter.

The Court has not had the opportunity to considerwhetherSeattle andHunter remain good law in lightofCroson andAdarands command that proper equalprotection analysis does not change depending onwho is asking. Now that that the issue is squarelybefore the Court, Seattle and Hunter should sufferthe same fate as Metro Broadcasting and be over-

ruled.Second, to the extent that Seattle and Hunter

retain any precedential value, they are inapplicableto the case before the Court for multiple reasons.Most importantly, for the political restructuringdoctrine to apply, even under its own terms, theremust be a racial classification, 458 U.S. at 485, orevidence of purposeful racial discrimination. Seattle

School Dist., 458 U.S. at 484-85 ([P]urposeful dis-crimination is the condition that offends the Con-stitution. . . . Thus, when facially-neutral legislation

is subjected to equal protection attack, an inquiryinto intent is necessary to determine whether thelegislature in some sense was designed to accord sep-


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arate treatment on the basis of racial considerations.(citations and internal quotation marks omitted)).The opposite is true in the case of the MCRI, the pur-pose of which is to eliminate racial classificationsin Michigan and prohibit discriminatory conduct. Toreach a contrary conclusion, as the Sixth Circuit didbelow, turns the Equal Protection Clause on its headby protecting the right to seek unequal treatment,rather than the right to be treated equally. SeeWilson, 122 F.3d at 708 (It is one thing to say indi-

viduals have equal protection rights against political

obstructions to equal treatment; it is quite anotherto say that individuals have equal protectionrights against political obstructions to preferentialtreatment.)

Moreover, this case is distinguishable from Seattleand Hunter because both cases were challenges togovernment actions that removed a single issue fromthe local political body, where it had been previouslyaddressed, and granted future authority on thenarrow topic to a more remote level of government.

See, Seattle Sch. Dist., 458 U.S. at 531 (finding that

the amendment in question lodg[es] decision-makingauthority at a new and remote level of government.)Even if such transfers of decision-making authoritywith respect to a particular issue were, under thecircumstances ofHunter andSeattle, improper, thosefacts bear no resemblance to Michigans challengedaction here.

In contrast with the facts ofSeattle and Hunter,MCRI did not target any local, democratically-adopted ordinance. Rather, MCRI is a sweeping anti-

discrimination amendment applying to all aspects ofMichigan state government.


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Nor did MCRI move decision-making regardingracial preferences from a local democratic institutionto a more remote level of government. Rather, (withrespect to higher education) it put the question ofracial discrimination and preferences to a state-wide

vote instead of leaving the issue to be determined (ona state-wide basis) in the administrative bureaucra-cies of the state universities. Thus, unlike inHunterand Seattle, here there is no local or less remotedemocratic institution affected by the MCRI. Indeed,to the extent the state universities administrative

bureaucracies responsible for racial preference poli-cies are democratically accountable at all, they areaccountable through their Boards of Governors, whoare elected (state-wide) over multiple election cycles.

BAMN, 701 F.3d at 499-500 (Gibbons, J. dissenting).To decide an issue of state-wide applicability viastate-wide referendum (as opposed to by administra-tive fiat) is not a restructuring of a political processat all, and, thus, Seattle and Hunter do not apply tothis case.

The political restructuring doctrine is inapposite to

this case for yet another reason: as this Court statedin Seattle, one justification for the Courts overturn-ing a state constitutional amendment adopted byreferendum was that the case implicate[d] the judici-arys special role in safeguarding the interests ofthose groups that are relegated to such a position ofpolitical powerlessness as to command extraordinaryprotection from the majoritarian political process.

Seattle Sch. Dist., 458 U.S. at 486 (citingSan AntonioIndependent School District v. Rodriquez, 411 U.S. 1,28 (1973).

But such a rationale clearly has no applicability inthe context of racial preferences in 2013. Proponents


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of racial preferences in higher education today arenot a powerless political minority requiring thisCourts protection, but a powerful political coalition.

Although this brief will be filed long before amici insupport of racial preferences must file, if the Fisherv. Univ. of Texas at Austin, 570 U.S. ____, slip op.(2013), Gratz, and Grutter cases are any indication,supporters of racial preferences will far outnumberdefenders of the MCRI. Whatever term might defineproponents of racial preferences in 2013, powerlessis not one of them. Proponents of racial preferences

can certainly be expected to compete on equal footingin the political process with advocates of racialneutrality.

Finally, Seattle and Hunter cannot apply in theracial preference context because, read in conjunctionwith this Courts decisions inFisher and Grutter, thedecisions place respondents on the horns of aninescapable logical conflict: in order for the politicalrestructuring doctrine to apply, the respondentsmust show that the racial preferences they defendinure primarily to the benefit of the minority, and

[are] designed for that purpose. Seattle Sch. Dist.,458 U.S. at 472. But those very same racialpreference policies can only be constitutional if theirpurpose is to further a compelling interest inobtaining the education benefits that flow from adiverse student body. Grutter, 539 U.S. at 342. Ifindeed racial preference programs were designed tobenefit the minority as Seattle andHunter require,rather than to obtain, for all students and for societyas a whole, the educational benefits of diversity, theprograms themselves would be unconstitutional. See

Grutter, 539 at 333 (The Law Schools interest isnot simply to assure within its student body somespecified percentage of a particular group merely


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because of its race or ethnic origin. []That wouldamount to outright racial balancing, which ispatently unconstitutional. Id. (quotingRegents ofthe University of California v. Bakke, 438 U.S. 265,307 (1978) (opinion of Powell, J.)).

Therefore, any racial preference program inMichigan that is constitutional must not have beendesigned for the benefit of the minority, but, rather,to obtain the benefits of educational diversity for allpeople, and no political restructuring claim may bemade against the MCRI. Conversely, to the extent

the MCRI is found to target a racial preferenceprogram designed for the benefit of the minority,that affirmative action program is unconstitutionalunder Grutter.

ARGUMENT

I. Hunter and Seattle, the lynchpins of theSixth Circuit decision, are no longer goodlaw and should be overturned.

The decision below eschews traditional EqualProtection Clause analysis by relying on Hunter and

Seattle, two cases in which this Court endorsedapplying strict scrutiny to facially-neutral laws onlywhere such laws effectively repealed a prior law orpolicy that inured to the benefit of racial minoritiesand moved the applicable decision-making process toa level of government that (the Court perceived)would make political victory more difficult for theminority. See generally, BAMN, 701 F.3d at 477(citingSeattle Sch. Dist., 458 U.S. at 467;Hunter, 393U.S. at 391). This propositionthe political restruc-

turing doctrineholds that a different Equal Protec-tion Clause analysis applies to a facially-neutralstatute depending on which racial group benefits


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from a particular law (or is harmed by a facially-neutral law modifying it) and, therefore, cannot besquared with the Courts decision which held thatthe standard of review under the Equal ProtectionClause is not dependent on the race of those bur-dened or benefited by a particular classification.Croson, 488 U.S. at 494 (plurality opinion); id. at 520(Scalia, J., concurring in judgment).

While Croson (and later Adarand, 515 U.S. 200),both addressed explicit racial classifications andrejected the proposition that differing modes of equal

protection analysis apply to benign versus invidi-ous discrimination, Hunter and Seattle purport toaccomplish the same differential treatment (in thecontext of race-neutral laws) based on which race(s)(in the Courts judgment) benefit from, or are bur-dened by, both the challenged law and the law itmodified. See Seattle Sch. Dist., 458 U.S. at 471-72(acknowledging the facial neutrality of the initia-tive in question, but finding a racial focus tothe initiative because desegregation of the publicschools, like the Akron open housing ordinance, at

bottom inures primarily for the benefit of the minority. . .) (emphasis added) and Hunter, 393 U.S. at 391([A]lthough the law on its face treats Negro andwhite, Jew and gentile in an identical manner, thereality is that the laws impact falls on the minority.The majority needs no protection against discrimina-tion . . . . (emphasis added)).

But this kind of analysis requires the Court todepart from its traditional principle that facially-neutral laws warrant strict scrutiny only if they are

motivated by a racial purpose or object, Miller v.Johnson, 515 U.S. 900, 913 (1995), or are, on theirface, one of those rare laws that are unexplainable


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on grounds other than race,Shaw v. Reno, 509 U.S.630, 646 (1993) (quotingArlington Heights v. MetroHous. Dev. Corp. 429 U.S. 252, 266 (1977)). Rather,strict scrutiny is triggered based on whether, in theCourts estimation, the minority or the majoritybenefits from a particular law or policy. This applica-tion of a stricter or looser standard of review depend-ing on which racial or ethnic groups interests areat stake cannot survive because it is functionallyindistinguishable from the Courts reasoning (analyz-ing federal equal protection component of the Fifth

Amendment Due Process Clause) inMetro Broadcast-ing v. FCC, 497 U.S. 547, 564-65 (1990) (holdingthat the question of whether federal race-consciousmeasures are analyzed under strict or intermediatescrutiny turns on whether such laws are benignwith regard to the interests of minority groups) thatwas overruled byAdarand, 515 U.S. at 227. In fact,

Adarand specifically criticized the Metro Broadcast-ing Courts contention, which would also be requiredby the Hunter and Seattle political restructuringdoctrine, that the race of the group benefiting from or

burdened by a particular law determines which stand-ard is used to analyze it under the Equal ProtectionClause.SeeAdarand, 515 U.S. at 227 (UnderMetro

Broadcasting, . . . the race of the benefited group iscritical to the determination of which standard ofreview to apply. Metro Broadcasting was, thus, asignificant departure from much of what had comebefore it.). Because Hunter and Seattle suffer fromthe same defectapplying different equal protectionstandards depending on the race of group burdenedor benefitted by particular law or policyas Metro

Broadcasting, they must also be overruled.Hunter and Seattle should be overruled as well

because both decisions undertake analysis of legisla-


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tions effect on ethnic or racial groups, rather thanindividuals, and therefore contradict this Courtsmore recent Equal Protection Clause cases recogniz-ing the fundamental principle of equal protection asapersonal right.Adarand, 515 U.S. at 235 (empha-sis added). CompareHunter, 393 U.S. at 393 ([T]heState may no more disadvantage any particular

group by making it more difficult to enact legislationin its behalfthan it may dilute any persons vote . . . )(emphasis added) andSeattle Sch. Dist., 458 U.S. atat 484 (This imposes direct and undeniable burdens

on minority interests. . . . [o]ne group cannot be sub-jected to a . . . . disadvantage.) (emphasis added) withCroson, 488 U.S. at 494 (noting that the rights createdby the first section of the Fourteenth Amendment are,by its terms, guaranteed to the individual. The rightsestablished are personal rights. (quoting Shelleyv. Kraemer, 334 U.S. 1, 22 (1948)) (emphasis added);

Adarand, 515 U.S. at 227 (the Fifth and FourteenthAmendments to the Constitution protectpersons notgroups) (emphasis in original); Gratz, 539 U.S at270 (It is by now well established that any person,

of any race, has the right to challenge governmentracial classifications under the same standard ofreview).

The wisdom of this Courts more recent decisionsviewing equal protection as a personal right ratherthan a group right is highlighted by any attempt toapply Seattles test and determine whether affirma-tive action policies that plaintiffs below sought topreserve inure primarily to the benefit of the minor-ity, and [are] designed for that purpose, Seattle

Sch. Dist., 458 U.S. at 472, and whether art. I, 26

by requiring equal treatmentburdens minorityinterests. The first hurdle to be overcome is definingthe minority. Are women, who make up a majority


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of both Michigan voters and college students, aminority or a majority for purposes of the politicalrestructuring doctrine? SeeWilson, 122 F.3d at 705,fn.13 (finding the argument that Hunter and Seattledo not extend to gender-based laws because womenare a majority of the electorate compelling but notreaching the issue). Similarly, are women as a groupburdened or benefitted by a ban on genderpreferences, given that it is likely men who arecurrently the underrepresented gender on Michigancampuses? If women are the beneficiaries of

affirmative action policies and, therefore, burdenedby MCRIs prohibition on gender preferences, thencan over half the population be a minority requiringprotection underSeattle and Hunter?

Moreover, who is the minority for purposes of thepolitical restructuring doctrines purported applica-tion to this case? For example, Asian-Americans arecertainly traditionally viewed as a minority group,albeit one that has in recent history been burdenedby, not a beneficiary of, racial preferences. See, e.g.,Gratz, 539 U.S. at 253-54 (describing racial and

ethnic groups (other than Asian Americans) receivingpreferential treatment under the challenged admis-sions program). By virtue of being an ethnic minorityin the typical sense are Asian-Americans to beregarded as part of the minority racial preferencepolicies are designed to be racially beneficial for?

SeeSeattle Sch. Dist, 458 U.S. at 483 (noting that thestate of Washingtons anti-bussing initiative maderacially beneficial legislation more difficult). Orbecause Asian-Americans have not been under-represented minorities with the scope of Michigans

racial preference policies, are Asian-Americans, there-fore, part of the majority that needs no protectionfrom discrimination according toSeattle? Cf.BAMN,


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701 F.3d at 510 (Nor is it even clear which groupsmen or women, this racial group or that one[MCRI]helps or hurts, or when each group will be affected.)(Sutton, J., dissenting)

Other courts and commentators have highlightedthe difficulty of reconciling Seattle and Hunterwith current Equal Protection Clause jurisprudenceand requested that this Court provide clarification.Wilson, 12 F.3d at 705 n.13 (describing the conflictbetween Seattle and Hunters political restructuringdoctrine and the Adarand line of case recognizing

equal protection as a personal right as seeminglyirreconcilable); Coral Construction. Inc., 50 Cal. 4that 341 (describing the difficulty of squaring thepolitical structure doctrine with modern equal pro-tection jurisprudence and stating that it would behelpful for this Court to clarify matters by directlyaddressing the continued viability of the politicalstructure doctrine in the appropriate case) (Corri-gan, J, concurring); BAMN, 701 F.3d at 513 (collect-ing sources critical of the political restructuring doc-trine as inconsistent with accepted equal protection

principles) (Griffin, J, dissenting). This Court shouldprovide that clarification by overrulingSeattle and

Hunter.

II. The Michigan Civil Rights Initiativeis Distinguishable from the ChallengedLaws in Seattle andHunter.

Assuming the political restructuring doctrine ofSeattle andHunter is still good law, this case is easilydistinguishable from bothSeattle andHunter and thedoctrine has no applicability here.


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A. There is no discriminatory intent,racial classification or racial focusto the MCRI.

Even if the political restructuring theory is itselfvalid, a challenged law can only violate the EqualProtection Clause when there is a racial classifica-tion, 458 U.S. at 485, or evidence of purposefulracial discrimination. Seattle Sch. Dist., 458 U.S. at484-85 ([P]urposeful discrimination is the conditionthat offends the Constitution. . . . Thus, when faciallyneutral legislation is subjected to equal protection

attack, an inquiry into intent is necessary to deter-mine whether the legislature in some sense wasdesigned to accord separate treatment on the basis ofracial considerations.) (citations and internal quota-tion marks omitted). But the whole purpose of theMCRI is to remove any racial classifications ordiscrimination from governmental decision-makingin Michigan, and, thus, the political restructuringdoctrine is inapplicable.

Amicus XIV Foundation has a unique perspective

to comment on motivations behind the MCRI becauseits CEO, Jennifer Gratz, was the Executive Directorof the MCRI (the organization that undertook theballot initiative that led to the amendment of theMichigan Constitution), as well as the plaintiff inGratz v. Bollinger 539 U.S. 244 (2003). As this Courtfound, Gratz herself was the victim of the State ofMichigans unconstitutional race preferences. Id. at539 U.S. at 274 (finding that the admissions systemused to consider Ms. Gratzs application to the Uni-

versity of Michigan violated the Equal Protection

Clause). Thus, it makes sense that she and otherinterested parties sought to eliminate the practice ofracial classification by Michigan in hiring, contract-


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ing and education. It is hard to imagine someone lesslikely to possess discriminatory intent than a victimof discrimination who sought only equal treatmentunder the law, persevered all the way to this Courtto achieve it, and then sought to eliminate, for allcitizens of her state, the presumptively unconstitu-tional practice that she challenged. See Parents

Involved, 551 U.S. at 720 (2007) (race-conscious ad-missions plans are presumptively unconstitutionalexcept when necessary to remedy past discrimination).

And yet for the political restructuring doctrine to

be applicable to the MCRI, the elimination of racialand gender classifications must either itself bedeclared a racial classificationwhich makes nosenseor this Court must find that enacting MCRIwas in some sense purposeful discriminationwhich requires a contortion of the MCRI itself.

While the text of the MCRI itself eliminates anyquestion about its discriminatory intent, the recordbelow bolsters the argument. The district courtrecognized that Ms. Gratz and other proponents of

the MCRI offered nondiscriminatory purposes forits adoption and, thus, the district court could notsay that the only purpose of [ 26] is to discriminateagainst minorities.BAMN, 701 F.3d at 504 (Gibbons,J. dissenting). This is not a difficult conclusion toreach with respect to an amendment prohibitingracial classifications. The Sixth Circuits reasoningthat the political restructuring doctrine appliesbecause MCRIs mandate of equal treatment itselfhas a racial focus, which in turn triggers applicationof Seattle and Hunterwould make nearly every

broad civil rights statute subject to a political restruc-turing attack, because nearly all civil rights statutesrequire equal treatment. See, e.g., Fair Housing Act


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of 1968, 42 U.S.C. 3604(b) (prohibiting discrimina-tion in housing transactions because of race, color,religion, sex, familial status, or national origin) andEqual Credit Act, Pub. L. 94-239, 90 Stat. 251 (1974).Thus all broad civil rights statutes impede the abilityof any particular racial group to seek preferentialtreatment from a lower level of government. Thereason such statutes are not subject to politicalstructure challenges is because, as the Ninth Circuitrecognized, [i]t is one thing to say individuals haveequal protection rights against impediments to equal

treatment; it is quite another to say that individualshave equal protection rights against political obstruc-tions to preferential treatment. While the Constitu-tion protects against obstructions to equal treatment,it erects obstructions to preferential treatment on itsown terms. Wilson, 122 F.3d at 708.

B. MCRI is a broad antidiscriminationamendment that does not target aparticular local law and thus does notrestructure a political process.

The instant case is distinguishable from bothHunter and Seattle because both cases were chal-lenges to state actions that removed a single issue (in

Hunter, housing anti-discrimination policy, and inSeattle, bussing for purposes of racial balance) fromthe local political structure (in Hunter, a City Coun-cil, inSeattle, a local school board), where it had beenpreviously addressed, and granted future authorityon the narrow topic to a more remote level ofgovernment. Even if such transfers of decision-making authority with respect to a particular issue

were, under the circumstances ofHunter andSeattle,improper, those facts bear no resemblance to theMichigans challenged action here.


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The MCRI does not address only racial preferencesin higher education. Rather, it is a sweeping pro-hibition against racial and gender discriminationin public contracting, public education, and publicemployment in short, precisely the type of legisla-tion one would expect to be passed at the state leveland a far cry from the challenged actions in SeattleandHunter. See Mich. Const. art 1, 26 (command-ing that the state, and its institutions of highereducation, shall not discriminate against, or grantpreferential treatment to, any individual or group on

the basis of race, sex, color, ethnicity, or nationalorigin in the operation of public employment, publiceducation, or public contracting.) The fact that theplaintiffs below, proponents of racial preferences inhigher education, did not challenge the bulk of theMCRI, does not transform the amendment from thesweeping prohibition of discrimination in stategovernment that it is into the narrow removal of acontroversial topic from local control that occurred in

Seattle andHunter.

Perhaps more importantly, the passage of the

MCRI did not restructure Michigans lawmakingstructure or impair the ability of minority interestsby reallocating decision-making authority from alocal legislative body to a more complex governmen-tal structure, Seattle 458 U.S. at 477. In contrastwithSeattle andHunter, the racial preference policythat plaintiffs below seek to preserve here was not ademocratically-adopted ordinance or law specificallytailored to a particular locality, but was craftedwithin the administrative bowels of the state-wideuniversity systems. See BAMN, 701 F.3d at 499

(Gibbons, J., dissenting). As Judge Gibbons pointedout in dissent below, the people of Michigan have notrestructured the states lawmaking process in the


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manner prohibited by Seattle and Hunter. Instead,their vote removed admissions policy from the handsof decision-makers who are unelected and unac-countable . . . and placed it squarely in an electoralprocess. Id.

WhateverSeattle andHunter stand for today, thosedecisions cannot stand for the proposition that theadministrative apparatus of one state-wide politicalbody (the university systems, whose Board of Gover-nors run in state-wide elections) cannot have itspolicies altered by a state-wide voter referendum

adopting a broad policy that contradicts its preferredpolicy.

C. Proponents of racial preferences arenot a politically powerless groupsimilar to the plaintiffs in Seattle and

Hunter.

In addition,Seattle andHunter are distinguishableto the extent the Courts rulings in those cases soughtto protect a political and racial minority (black fami-lies in Seattle and Akron) in a particular locality

from hostile political majorities seeking to placepolitical hurdles in place to thwart a popularly-adopted local law passed for the benefit of thatminority group. As this Court stated in Seattle, plac-ing unusual burdens on racial groups to enact legis-lation implicates the judiciarys special role insafeguarding the interests of those groups that arerelegated to such a position of political powerlessnessas to command extraordinary protection from themajoritarian political process. Seattle Sch. Dist.,458 U.S. at 486 (citingSan Antonio Independent

School District, 411 U.S. at 28.


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Even presumingSeattle is still good law, it strainscredulity to cast proponents of racial preferencesin higher education today as a powerless politicalminority requiring this Courts protection and as thepolitical equivalent of black families seeking integra-tion through bussing in Seattle in 1982 or blackfamilies seeking the benefit of anti-discriminationhousing ordinances in Akron in 1969. Racial prefer-ence policies in higher education today are hardlywithout broad political support beyond a particularlocality or racial group, especially among political,

academic, and business elites. Whatever termsmight define proponents of racial preferences in 2013,powerless is not among them. Proponents of racialpreferences can certainly be expected to compete onequal footing in the political process with advocatesof racial neutrality.

When this Court last reviewed the University ofMichigans racial preference policies, for example, theGovernor of Michigan, General Motors Corporation, aconsortium of other Fortune 500 companies, the

American Bar Association, United States Senators,

Presidents and Deans of virtually every prominentUniversity and College in the nation, retired militaryleaders, and numerous other political, business andcultural leaders all filed amicus briefs supportingMichigans policy of racial preferences in highereducation. See Grutter, 539 U.S. at 333-34 (citingbriefs filed by various amici in support of continueduse of racial preferences). This support has notwaned. This past term, 73 amici filed briefs insupport of racial preferences in Fisher v. Univ. ofTexas at Austin, 570 U.S., slip op. at __ (2013)

(Thomas, J, concurring). Moreover, the Michigan CivilRights Initiative itself was opposed by both theRepublican and Democratic candidates for Governor


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running at the time it passed, as well as a litany ofpowerful individuals and community groups.4

The MCRI did, however, gather impressive supportfrom the citizens of Michigan, who apparentlysaw value in a broad pronouncement of non-discrimination by the state government even thoughmany of their state political, business, and academicleaders disagreed with the proposed constitutionalamendment. It would be strange indeed if thisCourt, relying on Hunter and Seattle, invalidated astate constitutional ban on discrimination because it

found the array of CEOs, university presidents, barassociations, and federal and state leaders lined up in

4A press release from One United Michigan, a group

opposed to MCRI, listed the following people among its co-chairs

for its campaign opposing the MCRI: AT&T Michigan President

Gail Torreano; Teamsters General President James P. Hoffa;

Walbridge Aldinger Chairman and CEO John Rakolta Jr.; DTE

Energy CEO and Chairman Tony Earley; Blue Cross-Blue

Shield of Michigan CEO-Designee Daniel Loepp; United Auto

Workers President Ron Gettelfinger; Bing Steel Chairman &

CEO Dave Bing; Shirley Stancato, President & CEO of New

Detroit; Doug Rothwell, President and CEO of DetroitRenaissance; Henry Ford Health System President and CEO

Nancy Schlichting; Strategic Staffing Solutions President, CEO

and Founder Cynthia Pasky; Tom Gottschalk, Executive Vice

President, Public Policy and General Counsel of General Motors

Corporation; Tim O'Brien, Deputy Chief of Staff, Ford Motor

Company; Frank Fountain, Senior Vice President, External

Affairs/Public Policy, DaimlerChrysler Corporation; Archbishop

of Detroit and Chairman of the Michigan Catholic Conference

Adam Cardinal Maida; and Dennis Archer, Chairman of the

Board of Dickinson Wright. One United Michigan, Coalition

Supporting Equal Opportunity Affirmative Action Continues

to Grow (Press Release, April 6, 2006) available at http://www.prnewswire.com/news-releases/coalition-supporting-equal-

opportunity-affirmative-action-programs-continues-to-grow-56058

502.html (last visited June 28, 2013).
http://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.htmlhttp://www.prnewswire.com/news-releases/coalition-supporting-equal-opportunity-affirmative-action-programs-continues-to-grow-56058%20502.html


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support of racial preferences in higher educationinsufficiently powerful to compete politically with agrass-roots non-discrimination movement.

D. Because racial preferences policies inhigher education are constitutionalonly when their benefits flow to allpeople and if a racial preferenceprogram was not designed for thepurpose of benefitting the minority,the political restructuring doctrinecannot apply.

Finally, because [c]ontext matters when reviewingrace-based governmental action under the EqualProtection Clause, Grutter, 539 U.S. at 327, this caseis distinguishable from Seattle and Hunter for stillone more reason: the racial preference programsplaintiffs below sought to preserve cannot be charac-terized as programs that inure primarily to thebenefit of the minority, and [are] designed for thatpurpose.Seattle, 458 U.S. at 472. Nor can the MCRIbe characterized as a facially-neutral law for which

the reality is that the laws impact falls on theminority.Hunter, 393 U.S. at 391. Indeed, it is clearfrom this Courts decision in Grutter that it is racialpreferences perceived benefits to all students, andindeed to society itself, that is the key reason theseprograms are, in some circumstances, constitutionalat all. Grutter 539 at 333 (The Law Schools interestis not simply to assure within its student body somespecified percentage of a particular group merelybecause of its race or ethnic origin. That wouldamount to outright racial balancing, which is

patently unconstitutional. Id. (quotingBakke, 438U.S., at 307 (opinion of Powell, J.)).


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The Court in Grutter relied extensively (if notexclusively) on the benefits of racial preferencesbeyond those to any particular minority group infinding that the benefits that flow from educationaldiversity were a compelling state interest. Access tolegal education (and, thus, the legal profession) mustbe inclusive of talented and qualified individuals ofevery race and ethnicity, so that all members of ourheterogeneous society may participate in the educa-tional institutions that provide the training and edu-cation necessary to succeed in America. Grutter at

332 (emphasis added). Given that racial preferencesremain constitutional in limited circumstances onlybecause their purpose is not to benefit a particularminority group, but to provide society at large withthe benefits that flow from educational diversity id.at 343, the political restructuring analysis under-taken by the Sixth Circuit is not appropriate.

As the Sixth Circuit acknowledged, in order totrigger political restructuring analysis rather thantraditional Equal Protection analysis, the chal-lenged enactment must ha[ve] a racial focus, tar-

geting a policy or program that inured primarily tothe benefit of the minority. BAMN, 701 F.3d at477 (quotingSeattle, 458 U.S. at 467). But, notwith-standing the Sixth Circuits contrary conclusion,this standard could not be met here, because if itwere, the racial preference programs at Michigansinstitutions of higher education would be unconstitu-tional.

At bottom, proponents of racial preferences cannothave it both ways. The practice of using racial

preferences in higher education is constitutional ona limited basis precisely because (its proponentsargued successfully to this Court in Grutter) its


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purpose was not merely to benefit the minority butto provide all students, and society itself, the benefitsof educational diversity. Todays proponents ofracial preferences (many of whom argued for adop-tion of the diversity rationale in Grutter) now, for thepurpose of shoe-horning their attack on a broadnondiscrimination amendment into the politicalrestructuring doctrine established by Seattle and

Hunter, claim that racial preference programs inureprimarily for the benefit of minorities a claim that,if true, likely would have been fatal to the challenged

racial preference program in Grutter. But becauseracial preferences are constitutional only when notdesigned primarily to benefit the minority, thepolitical restructuring doctrine of Seattle and

Hunter, to the extent it remains viable at all, cannotbe triggered here.

CONCLUSION

Because the decision below relies on the continuedviability of Seattle and Hunter, which should beoverruled, and because, in the alternative, the po-

litical restructuring doctrine is inapplicable to achallenge to the MCRI, the Sixth Court should bereversed.

Respectfully submitted,

* Counsel of Record

ROBERT N.DRISCOLL*FRIEDLANDER MISLER, PLLC5335 Wisconsin Avenue,Suite 600Washington, DC 20015(202) 872-0800

[email protected]

July 1, 2013

Documents

XIV Foundation Amicus Brief Supporting MCRI