No. 06-A678 IN THE Supreme Court of tfje QUmteb COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND TO FIGHT FOR EQUALITY BY ANY MEANS NECESSARY, UNITED FOR EQUALITY AND AFFIRMATIVE ACTION LEGAL DEFENSE FUND, RAINBOW PUSH COALITION, ET AL., Petitioners, v. JENNIFER GRANHOLM, AS GOVERNOR OF THE STATE OF MICHIGAN, THE REGENTS OF THE UNIVERSITY OF MICHIGAN, THE BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY, THE BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, AND MIKE Cox, IN HIS CAPACITY AS ATTORNEY GENERAL OF MICHIGAN, AND ERIC RUSSELL, Respondents. ON MOTION TO DISSOLVE A STAY PENDING APPEAL MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF AMICI CURIAE THE CANTRELL PLAINTIFFS IN SUPPORT OF PETITIONERS MARKROSENBAUM Counsel of Record ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1616 Beverly Boulevard Los Angeles, CA 90026 (213)977-9500 MELVIN BUTCH HOLLOWELL, JR. DETROIT BRANCH NAACP ALLEN BROTHERS PLLC 400 Monroe St., Suite 220 Detroit, MI 48226 (313)962-7777 LAURENCE H. TRIBE Hauser Hall 420 1575 Massachusetts Avenue Cambridge, MA 02138 (617)495-4621 KARIN A. DEMASI CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 (212)474-1000 Counsel for the Cantrell Plaintiffs Additional Counsel Listed On Inside Cover January 17, 2007
Transcript
No. 06-A678
IN THESupreme Court of tfje QUmteb
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION ANDIMMIGRANT RIGHTS AND TO FIGHT FOR EQUALITY BY ANY MEANS
NECESSARY, UNITED FOR EQUALITY AND AFFIRMATIVE ACTIONLEGAL DEFENSE FUND, RAINBOW PUSH COALITION, ET AL.,
Petitioners,v.
JENNIFER GRANHOLM, AS GOVERNOR OF THE STATE OF MICHIGAN,THE REGENTS OF THE UNIVERSITY OF MICHIGAN, THE BOARD OF
TRUSTEES OF MICHIGAN STATE UNIVERSITY, THE BOARD OFGOVERNORS OF WAYNE STATE UNIVERSITY,
ANDMIKE Cox, IN HIS CAPACITY AS ATTORNEY GENERAL OF
MICHIGAN, AND ERIC RUSSELL,Respondents.
ON MOTION TO DISSOLVE A STAY PENDING APPEAL
MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OFAMICI CURIAE THE CANTRELL PLAINTIFFS
IN SUPPORT OF PETITIONERS
MARKROSENBAUMCounsel of RecordACLU FOUNDATION OFSOUTHERN CALIFORNIA1616 Beverly BoulevardLos Angeles, CA 90026(213)977-9500
MELVIN BUTCH HOLLOWELL, JR.DETROIT BRANCH NAACPALLEN BROTHERS PLLC400 Monroe St., Suite 220Detroit, MI 48226(313)962-7777
LAURENCE H. TRIBEHauser Hall 4201575 Massachusetts AvenueCambridge, MA 02138(617)495-4621
KARIN A. DEMASICRAVATH, SWAINE & MOORE LLPWorldwide Plaza825 Eighth AvenueNew York, NY 10019-7475(212)474-1000
Counsel for the Cantrell PlaintiffsAdditional Counsel Listed On Inside CoverJanuary 17, 2007
THEODORE M. SHAWVICTOR BOLDENANURIMA BHARGAVANAACP LEGAL DEFENSE &EDUCATIONAL FUND99 Hudson Street, 16th FloorNew York, NY 10013(212) 965-2200
ERWIN CHEMERINSKYDUKE UNIVERSITY SCHOOL OFLAWScience Drive & Towerview Rd.Durham, NC 27708(919)613-7173
DENNIS PARKERALEXIS AGATHOCLEOUSAMERICAN CIVIL LIBERTIESUNION FOUNDATION RACIALJUSTICE PROGRAM125 Broad St., 18th FloorNew York, NY 10004-2400(212)519-7832
KARY L. MossMICHAEL J. STEINBERGMARKP.FANCHERAMERICAN CIVIL LIBERTIESUNION FUND OF MICHIGAN60 W. Hancock StreetDetroit, MI 48201(313)578-6814
JEROME R. WATSONMILLER, CANFIELD, PADDOCK ANDSTONE, P.L.C.150 West Jefferson, Suite 2500Detroit, MI 48226(313)963-6420
DANIEL P. TOKAJITHE OHIO STATE UNIVERSITYMORITZ COLLEGE OF LAW55 W. 12thAve.Columbus, OH 43206(614) 292-6566
Counsel for the Cantrell Plaintiffs
No. 06-A678
IN THECourt of tfje flta'teb
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATIONAND IMMIGRANT RIGHTS AND TO FIGHT FOR EQUALITY BY
ANY MEANS NECESSARY, UNITED FOR EQUALITY ANDAFFIRMATIVE ACTION LEGAL DEFENSE FUND, RAINBOW
PUSH COALITION, ET AL.,Petitioners,
v.JENNIFER GRANHOLM, AS GOVERNOR OF THE STATE OF
MICHIGAN, THE REGENTS OF THE UNIVERSITY OF MICHIGAN,THE BOARD OF TRUSTEES OF MICHIGAN STATE UNIVERSITY,THE BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY,
ANDMIKE Cox, IN HIS CAPACITY AS ATTORNEY GENERAL OF
MICHIGAN, AND ERIC RUSSELL,Respondents.
ON MOTION TO DISSOLVE A STAY PENDING APPEAL
MOTION OF AMICICURIAE THE CANTRELLPLAINTIFFS FOR LEAVE TO FILE BRIEF
IN SUPPORT OF PETITIONERS
Plaintiffs in Cantrell, et al. v. Granholm, No. 2:06-cv-15637 (E.D. Mich.), who represent a proposed class of allpresent and future students and faculty at the University ofMichigan who applied to, matriculated at, or continue to beenrolled at or employed by the University of Michigan inreliance upon the University's representation that it wouldcontinue to admit and enroll a diverse group of studentsconsistent with the University's former admissions policy,respectfully move this Court pursuant to Supreme Court Rule37.2 for leave to file the accompanying brief in support ofPetitioners in Coalition to Defend Affirmative Action,
Integration and Immigrant Rights and To Fight For EqualityBy Any Means Necessary, et al. v. Granholm, et al..
On January 5, 2007, the District Court for the EasternDistrict of Michigan consolidated Petitioners' case with theCantrell litigation. See January 5, 2007 Order. Indeed,these cases raise common questions of law and fact, and theinterests of the plaintiffs in both litigations are equally atstake with respect to the stay order entered by the UnitedStates Court of Appeals for the Sixth Circuit that Petitionershave asked this Court to vacate.
Amid, the Cantrell Plaintiffs, respectfully seek tosubmit their brief to further explain the extent to which theSixth Circuit panel failed to recognize and uphold thisCourt's political restructuring jurisprudence as set forth inHunter v. Erickson, 393 U.S. 385 (1969) and Washington v.Seattle School District No. I, 458 U.S. 457 (1982). Thepanel's flawed discussion of Hunter and Seattle should notbe permitted to stand, even as dicta. Moreover, the CantrellPlaintiffs support Petitioners' request that this Court vacatethe Sixth Circuit's opinion, which, if left to stand, wouldseriously and irreparably harm the rights of high schoolstudents around the country whose applications to theUniversity of Michigan are being evaluated according to twodifferent sets of criteria as a result of the Sixth Circuit'sdecision. Amid, the Cantrell Plaintiffs, believe that they willpresent arguments to this Court that will not be, and have notbeen, presented in the same form by the parties.
For the foregoing reasons, amid, the Cantrell Plaintiffs,respectfully request that this Court grant their motion forleave to file the accompanying brief in support of Petitioners.
January 17, 2007
Respectfully submitted,
Is/ Mark RosenbaumMARK ROSENBAUM
Counsel of Record
LAURENCE H.TRIBEHauser Hall 4201575 Massachusetts AvenueCambridge, Mass. 02138(617)495-4621
JEROME R. WATSONMILLER, CANFIELD, PADDOCK ANDSTONE, P.L.C.
150 West Jefferson, Suite 2500Detroit, MI 48226(313)963-6420
DENNIS PARKERALEXIS AGATHOCLEOUSAMERICAN CIVIL LIBERTIES UNIONFOUNDATION RACIAL JUSTICEPROGRAM
125 Broad St., 18th FloorNew York, NY 10004-2400(212)519-7832
DANIEL P. TOKAJITHE OHIO STATE UNIVERSITYMORITZ COLLEGE OF LAW
55 W. 12thAve.Columbus, OH 43206(614) 292-6566
Counsel for the Cantrell Plaintiffs
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES iii
INTEREST OF AMICI CURIAE 1
JURISDICTION 2
SUMMARY OF ARGUMENT 2
ARGUMENT 4
I. STANDARD FOR GRANTING RELIEF 4
II. THIS COURT SHOULD GRANT PETITIONERS'MOTION TO DISSOLVE THE STAY ENTEREDBY THE SIXTH CIRCUIT 5
A. Petitioners' Rights May Be Seriously AndIrreparably Injured By The Sixth Circuit'sStay And This Court Could And LikelyWould Review The Underlying Case Upon ItsFinal Disposition 5
B. The Sixth Circuit Is Demonstrably Wrong InIts Application Of Accepted Standards InDeciding To Issue The Stay 7
1. This Court Held In Hunter and SeattleThat A State May Not SelectivelyBurden The Process Of SecuringLegislation Predominantly AdvancingThe Interests Of Racial Minorities 7
2. Hunter and Seattle Remain Good LawAnd Have Controlling Force In TheUnderlying Case 11
11
Page
3. The Sixth Circuit FundamentallyMisconstrued and Misapplied ThisCourt's Political Restructuring DoctrineAs Set Forth in Hunter and Seattle 12
CONCLUSION 16
Ill
TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Const., Inc. v. Pena,515 U.S. 200 (1995) 11
Certain Named and Unnamed Non-CitizenChildren and Their Parents v. Texas,448 U.S. 1327 (1980) 2
Coleman, Jr. v. Paccar Inc.,424 U.S. 1301 (1976) 2, 5
Crawford v. Bd. ofEduc.,458 U.S. 527 (1982) 13, 15
Grutter v. Bollinger,539 U.S. 306 (2003) .passim
Hunter v. Erickson,393 U.S. 385 (1969) .passim
Hunter v. Underwood,471 U.S. 222 (1985) 11,14
Layne & Bowler Corp. v. W. Well Works,261 U.S. 387 (1923) 6
Richmond v. J.A. Croson Co.,488 U.S. 469 (1989) 11
Washington v. Seattle Sch. Dist. No. I,458 U.S. 457 (1982) .passim
Statutes & Rules
Sup. Ct. R. 10(c) 6
IV
Page(s)
28U.S.C. § 1651 (2000) 2
28 U.S.C. § 2101(f) Supp. Ill 2002 2
Mich. Const. 1963, art. I, § 26 3,12
Other Authorities
Amar & Caminker, "Equal Protection, UnequalPolitical Burdens, and the CCRI," 23 HastingsConst. L.Q., 1019 (1996) 16
INTEREST OF AMICI CURIAE1
Amid, the Cantrell Plaintiffs, represent a proposed classof all present and future students and faculty at the Universityof Michigan who applied to, matriculated at, or continue tobe enrolled at or employed by the University of Michigan inreliance upon the University's representation that it wouldcontinue to admit and enroll a diverse group of students atthe school consistent with its former admissions policy.Having already described their interest in this case in theirmotion for leave to file a brief in support of Petitioners (pp.1-3), amid repeat here that the stay order entered below mayhave a substantial impact on thousands of students around thecountry, including amid, who already have applied to publicuniversities in Michigan and who will have their applicationsassessed according to two different sets of criteria dependingupon the sheer fortuity of when in the cycle their applicationscame up for consideration. Moreover, amid seek to have theSixth Circuit's stay dissolved so that the importantconstitutional issues at the core of the underlyingconsolidated cases might be fully developed and briefed, andso that the panel opinion not set this litigation on afundamentally misdirected track at the very outset of theselawsuits.
1 Counsel for Petitioners did not author, in whole or in part, thisbrief; nor did any person or entity, other than amid and their counsel,make a monetary contribution to the preparation or submission of thisbrief.
JURISDICTION
A temporary injunction was entered by the UnitedStates District Court for the Eastern District of Michigan onDecember 18, 2006.2 On December 29, 2006, the UnitedStates Court of Appeals for the Sixth Circuit entered anOpinion and Order staying, pending appeal, the districtcourt's temporary injunction.3 Accordingly, the relief soughtby Petitioners is not available from any other court or judge.
The jurisdiction of an individual Justice to vacate a stayorder entered by a lower court pending appeal of an orderentered by a court below is invoked under Sup. Ct. R. 22-23,28 U.S.C. § 1651 (2000) and 28 U.S.C. § 2101(f) (Supp. Ill2002). See Coleman, Jr. v. Paccar Inc., 424 U.S. 1301, 1304(1976) (Rehnquist, Circuit Justice) (finding that "a CircuitJustice has jurisdiction to vacate a stay" under certaincircumstances); see also Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327,1330 (1980) (Powell, Circuit Justice) ("The power of aCircuit Justice to dissolve a stay is well settled.") (internalcitation omitted).
SUMMARY OF ARGUMENT
This case raises the issue of the constitutionality ofProposal 2, an amendment to the Constitution of the State ofMichigan which (among other things) proponents contendbars continuation of existing race-conscious policies andprograms designed to achieve diversity in classrooms at
A copy of the district court's Order Granting TemporaryInjunction And Dismissing Cross-Claim In Part is attached as Exhibit Bto Petitioners' motion.
3 A copy of the Sixth Circuit's opinion granting Respondents'motion for a stay of the temporary injunction entered by the district court("Opinion") is attached as Exhibit A to Petitioners' motion.
colleges and universities throughout Michigan, including atthe University of Michigan. This Court affirmed just overthree years ago that the University of Michigan may employrace-conscious admissions programs that are narrowlytailored to achieve its compelling interest in student bodydiversity. See Grutter v. Bollinger, 539 U.S. 306 (2003).
An emergency motions panel of the Sixth Circuit,without benefit of full and deliberate briefing or anyevidentiary record, stayed a limited injunction entered by thedistrict court that enforced a stipulation among the stateentities involved in the litigation,4 including the Governor ofthe State of Michigan, the Attorney General, and theUniversity of Michigan, Michigan State and Wayne State("State Universities"), which would have kept in placeexisting programs only until July 1, 2007, so as not to disruptthe ongoing admissions cycle. No party had more than48 hours to prepare and file papers, and all principal briefingwas ordered to be filed on December 28, 2006.
The emergency panel issued its opinion onDecember 29, 2006, staying the injunction and extinguishingthe stipulation. Although stating that "the merits of theappeal of the order granting the preliminary injunction ...[is] not before this panel" (Opinion at 5), the Opinion issuedis breathtaking in its aggressive scope and sweep as to the
4 The stipulation, a copy of which is attached as Exhibit C toPetitioners' motion, states in relevant part:
"It is hereby stipulated, by and between the parties thatthis Court may order as follows:
(1) that the application of Constf.] 1963, art[.] 1, § 26 tothe current admissions and financial aid policies of theUniversity parties is enjoined through the end of the currentadmissions and financial aid cycles and no later than 12:01a.m. on July 1, 2007, at which time this Stipulated Injunctionwill expiref.]"
underlying constitutional issues in the case.5 Moreparticularly, the panel devoted barely a page of its decision tothis Court's political restructuring doctrine under theFourteenth Amendment as set forth in Hunter v. Erickson,393 U.S. 385 (1969) and Washington v. Seattle SchoolDistrict No. 1, 458 U.S. 457 (1982). In fact, theHunter/Seattle claim was never even presented to the districtcourt as grounds for a stay or approval of the stipulation.Perhaps as a consequence, the panel, in its few-paragraphdiscussion of the issue, got this Court's jurisprudencefundamentally wrong. The panel failed to recognize anduphold the Hunter/Seattle principle that a state may notselectively burden the process of securing legislationpredominantly advancing the interests of racial minorities.Accordingly, the stay of the stipulation should be dissolvedto avoid serious and irreparable injury to the rights of theparties to the underlying action, and so that the importantconstitutional issues at the core of this case might be fullydeveloped and briefed such that the panel opinion not set thislitigation on a fundamentally misdirected track, derailing itwith so weighty a misguided precedent at the very outset ofthe lawsuit.
ARGUMENT
I. STANDARD FOR GRANTING RELIEF
Former Chief Justice William Rehnquist, deciding amotion addressed to him individually to vacate a stay order
5 It seems highly irregular, if not jurisdictionally improper, that theSixth Circuit panel asked the parties to brief and then ruled upon thelikelihood of success for all of the claims filed by all parties to the action,rather than limiting itself to the single claim advanced in support of a stayin the district court below. Moreover, the purported reason for the stay—that the district court no longer had jurisdiction over the matter once thestipulation was entered—is a dubious one because the stipulation did notextinguish the action.
entered by the United States Court of Appeals for the NinthCircuit in a case then pending before that court, found that "aCircuit Justice has jurisdiction to vacate a stay where itappears that the rights of the parties to a case pending in thecourt of appeals, which case could and very likely would bereviewed here upon final disposition in the court of appeals,may be seriously and irreparably injured by the stay, and theCircuit Justice is of the opinion that the court of appeals isdemonstrably wrong in its application of accepted standardsin deciding to issue the stay." See Paccar Inc., 424 U.S. at1304.
Accordingly, an individual Justice has jurisdiction tovacate a stay entered by a lower court if the petitioners candemonstrate that (1) their rights "may be seriously andirreparably injured by the stay," provided that the underlyingcase to which they are a party "could and very likely wouldbe reviewed [by this Court] upon final disposition" and (2)the lower court "is demonstrably wrong in its application ofaccepted standards in deciding to issue the stay." Id.
II. THIS COURT SHOULD GRANT PETITIONERS'MOTION TO DISSOLVE THE STAY ENTEREDBY THE SIXTH CIRCUIT.
A. Petitioners' Rights May Be Seriously AndIrreparably Injured By The Sixth Circuit'sStay And This Court Could And Likely WouldReview The Underlying Case Upon Its FinalDisposition.
Reinstating the district court's temporary injunction topreserve the status quo is necessary to avoid serious andirreparable injury to thousands of students who already haveapplied to the State Universities, and perhaps not appliedelsewhere, with the justifiable expectation that currentadmissions policies would provide the basis for evaluatingtheir applications and determining their educational future.
As it stands now under Proposal 2—and with the injunctionstayed—high school students around the country are havingtheir applications assessed according to two different sets ofcriteria depending upon the sheer fortuity of when in thecycle their applications came up for consideration. That isplainly unfair.
In addition to the unfairness that will result if the SixthCircuit's stay is not lifted, Petitioners seek relief from thisCourt to avoid the irreparable injury that so misguided aprecedent will cause if left in place at this early stage in theunderlying litigation. As Petitioners themselves set forth intheir brief, Proposal 2 poses a serious threat to the interests ofboth present and future applicants to colleges and universitiesthroughout Michigan. These interests will suffer irreparableharm if this Court blesses the Sixth Circuit's hasty disposalof the constitutional issues at stake in these consolidatedcases by declining to lift the stay.
For these reasons, among others, the underlying case inthis matter could and likely would be reviewed by this Courtupon final disposition on the merits. Pursuant to SupremeCourt Rule 10(c), this Court has the discretion to grant apetition for a writ of certiorari if a lower court "has decidedan important question of federal law that has not been, butshould be, settled by this Court, or has decided an importantfederal question in a way that conflicts with relevantdecisions of this Court." As this Court has made clear, itseeks to "be consistent in not granting the writ of certiorariexcept in cases involving principles the settlement of which isof importance to the public, as distinguished from that of theparties." Layne & Bowler Corp. v. W. Well Works, 261 U.S.387,393 (1923) (emphasis added).
Of obvious concrete importance to the public is the factthat high school students around the country are having theirapplications assessed according to two different sets ofcriteria as a result of Proposal 2's enactment. Moreover, at
the core of the underlying litigation are principlesinextricably tied to questions that this Court already hasfound to be of "national importance." See Grutter v.Bollinger, 539 U.S. 306, 322 (2003) ("Whether diversity is acompelling interest that can justify the narrowly tailored useof race in selecting applicants for admission to publicuniversities" is a "question of national importance."). If thisCourt considered the question of whether it is constitutionalfor a public college or graduate school to use race as a factor
^ in its admissions process "a question of national importance,"-. id., certainly the important federal question of whether it is
constitutional for a state to amend its constitution to makesuch a consideration impermissible must be of equal nationalimportance.
B. The Sixth Circuit Is Demonstrably Wrong InIts Application Of Accepted Standards InDeciding To Issue The Stay.
1. This Court Held In Hunter and SeattleThat A State May Not Selectively BurdenThe Process Of Securing LegislationPredominantly Advancing The InterestsOf Racial Minorities.
Nearly four decades ago, this Court held that a state lawviolates the Equal Protection Clause when it "mak[es] itmore difficult for certain racial... minorities [than for othermembers of the community] to achieve legislation that is intheir interest." Hunter, 393 U.S. at 395 (Harlan, J.,concurring). In Hunter, this Court invalidated a referendumadopted by a majority of voters of the City of Akron, Ohiothat amended the city charter to require popular approval ofany ordinance regulating real estate transactions "on the basis
> of race, color, religion, national origin or ancestry." Id. at387. The charter amendment thus not only repealed a fairhousing ordinance previously enacted by the city council,"but also required the approval of the electors before any
8
future [housing discrimination] ordinance could take effect."Id. at 389-90.
This Court, by a vote of 8-1, struck down the Akronamendment, finding that it "drew a distinction between thosegroups who sought the law's protection against racial,religious, or ancestral discriminations in the sale and rental ofreal estate and those who sought to regulate real propertytransactions in the pursuit of other ends." Id. at 390. ThisCourt readily discounted the facial neutrality of the charteramendment, which "drfew] no distinctions among racial andreligious groups," finding that it would nonetheless uniquelydisadvantage those principally benefiting from race-conscious fair housing laws—i.e., minorities—by forcingthem to run a legislative "gantlet" of popular approval thatother laws were spared. Id. at 390-91. As this Courtconcluded, "the reality is that the law's impact falls on theminority." Seeid.at39\.
In Seattle, 458 U.S. at 467-71, this Court reaffirmed itsholding in Hunter, upholding once again the principle that,while the state may make it more difficult for everyoneacross the board to enact or enforce laws on a particularsubject matter, it may not make it selectively more difficultto secure legislation predominantly advancing the interests ofracial minorities. Specifically, Seattle invalidated Initiative350, a statewide measure that provided in a facially neutralfashion (it made no mention whatsoever of race or of racialminorities) that '"no school board . . . shall directly orindirectly require any student to attend a school other thanthe school which is geographically nearest or next nearest thestudent's place of residence.'" 458 U.S. at 462. Theinitiative, however, contained so many exceptions to thisgeneral prohibition that its sole (and clearly intended)practical effect was to bar race-conscious busing to respondto de facto segregation, while permitting busing for any otherreason. See id. at 462-63. After Initiative 350, it became
9
politically and legally pointless for advocates of race-conscious busing ever to approach their local or state schoolboards to seek such measures, no matter the relative strengthof their pleas. While this Court expressly recognized that ofcourse both minority and non-minority citizens might wellfavor busing programs, it concluded nonetheless thatInitiative 350 "allocate[d] governmental power nonneutrally,by explicitly using the racial nature of a decision todetermine the decisionmaking process" in flat violation of theHunter principle. See id. at 470. More particularly, "byspecifically exempting from Initiative 350's proscriptionsmost nonracial reasons for assigning students away fromtheir neighborhood schools, the initiative expressly requiresthose championing school integration to surmount aconsiderably higher hurdle than persons seeking comparablelegislative action." Id. at 474; see also id. at 483 ("[Initiative350] burdens all future attempts to integrate Washingtonschools in districts throughout the State, by lodgingdecisionmaking authority over the question at a new andremote level of government.").
Seattle therefore held that the Equal Protection Clauseprohibits any law that "subtly distorts governmentalprocesses in such a way as to place special burdens on theability of minority groups to achieve beneficial legislation".See id. at 467. Precisely like Hunter, Seattle barred a statefrom selectively burdening attempts to secure programs that"inure[ ] primarily to the benefit of the minority." See id. at472; see also Hunter, 393 U.S. at 390-91. This constitutionalrule remains the law today, and neither this Court nor anyJustice has ever intimated that it should be otherwise.
Proposal 2 works precisely the same sort offundamental change in the rules of political engagement thatthis Court condemned in Seattle. Here, just as in Seattle, thepolitical process prior to the initiative gave discretion to stateagencies (state universities, graduate and professional
10
schools) over the matters (race-conscious affirmative actionadmissions programs) reached by the initiative. Here, as inSeattle, that prior political discretion included the power toadopt constitutionally permissible measures to promote racialintegration and the benefits of a diverse student body. Here,as in Seattle, the initiative leaves that discretion in place—such that state universities and their constituentundergraduate, graduate and professional schools mayconsider and adopt as part of their admissions process"preferences"6 in favor of any group or criteria (e.g.,geographical, legacy, athletic)—with the exception of race-based "preferences" that, like the particular busing measuresbarred by the Seattle initiative, inure to the primary benefit ofracial minorities. And here, as in Seattle, the politicalrestructuring effected made it as difficult as any statemeasure could for minorities to achieve legislation on theirbehalf, requiring enactment of a new constitutionalamendment as the only possible means of restoringadmissions criteria previously put in place at the universitylevel.
Thus, as applied here, Proposal 2 imposes, just asInitiative 350 had in Seattle, a "comparative" burden onminority interests by its reconstructing of the politicalprocess in "removing] the authority to address a racialproblem—and only a racial problem—from the existingdecisionmaking body." Id. at 474, 475 n.17. Proposal 2leaves the political process untouched with respect to thepermissibility of state university officials to determineadmissions policies by weighing the interests of thoseseeking "preferences" other than race, no matter the weightsought to be accorded all such "preferences," their manifest
6 By the use of the term "preference" in this brief, the CantrellPlaintiffs do not adopt the definition of that term advocated byproponents of Proposal 2.
11
unfairness, or their lack of any relationship whatsoever tomerit-based outcomes.7
2. Hunter and Seattle Remain Good Law AndHave Controlling Force In The UnderlyingCase.
Hunter and Seattle remain good law. If anything, thisCourt's recent decision in Grutter underscores the controllingforce of Seattle as to this case. It was perhaps the mostnatural counter-argument prior to Grutter that post-Seattledevelopments in this Court's jurisprudence—notably,Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), andAdarand Construction, Inc. v. Pena, 515 U.S. 200 (1995)—raised a concern that "race-preferential" treatment in publichigher education (as well as elsewhere) would be deemedsubject to and then fail strict scrutiny, thereby becomingracially discriminatory measures barred by federal equalprotection norms. Although the racial restructuring principleunderlying Seattle had never been questioned, the argumentcould have been at least colorably made that a measure likeProposal 2 was defensible as a means of avoiding whatimminently would be viewed as a violation of the FourteenthAmendment.
After Grutter, however, no such "neutral" concerncould even plausibly be advanced to support Proposal 2.This is of course so because, as the state has beenauthoritatively informed in Grutter, the very race-based"preferences" that proponents of Proposal 2 claim are barred(or at least elevated to a different decision-making unit and
7 As discussed infra, the racial nature of Proposal 2 is no lesssimply because "preferential treatment" based on gender is alsopurportedly banned. See infra at p. 14; Hunter v. Underwood, 471 U.S.222, 231-32 (1985) (observing that measures discriminating along raciallines are not constitutional simply because they also discriminate alonglines that do not trigger strict scrutiny).
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process) by this initiative, if properly designed to promote adiverse student body, are fully consistent with equalprotection norms. See Grutter, 539 U.S. at 343 ('the EqualProtection Clause does not prohibit the Law School'snarrowly tailored use of race in admissions decisions tofurther a compelling interest in obtaining the educationalbenefits that flow from a diverse student body."). Indeed,Grutter makes the case against Proposal 2 strongerconstitutionally than the case against the measuresinvalidated in either Hunter or Seattle: the racial matterssubject to the political restructuring in those earlier caseswere legitimate interests for individuals to champion but theywere not then (and are not now) held to be compelling stateinterests satisfying strict scrutiny analysis.
3. The Sixth Circuit FundamentallyMisconstrued and Misapplied This Court'sPolitical Restructuring Doctrine As SetForth in Hunter and Seattle.
In the extreme haste of its decisionmaking, the panel notonly reached the wrong result, but also relied upon apurported distinction from Hunter immaterial to the holding,and misapprehended Seattle so radically as to require thatdecision to have come out the other way. This is how thepanel sought to distinguish Proposal 2 from this Court'spolitical restructuring jurisprudence:
"Unlike the laws invalidated in Hunter [and]Seattle... , Proposal 2 does not burden minorityinterests and minority interests alone. Theproposal prohibits the State from discriminatingagainst or granting preferential treatment toindividuals on the basis of "race, sex, color,ethnicity, or national origin." Mich. Const, art. I,§ 26. No matter how one chooses to characterizethe individuals and classes benefitted or burdenedby this law, the classes burdened by the law
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according to the plaintiffs—women andminorities—make up a majority of the Michiganpopulation. As Hunter indicates, the "majorityneeds no protection against discrimination and if itdid, a referendum might be bothersome but nomore than that." 393 U.S. at 391. Unlike theHunter line of cases, then, Proposal 2 does notsingle out minority interests for this alleged burdenbut extends it to a majority of the people of theState.
Even were we to consider only the law'srestrictions on racial preferences, this political-process claim still would not be likely to succeed.The challenged enactments in Hunter [and]Seattle... made it more difficult for minorities toobtain protection from discrimination through thepolitical process; here, by contrast, Proposal 2purports to make it more difficult for minorities toobtain racial preferences through the politicalprocess. These are fundamentally differentconcepts. The Hunter [and] Seattle . . . decisions,moreover, objected to a State's impermissibleattempt to reallocate political authority. SeeSeattle, 458 U.S. at 470 (prohibiting a governmentfrom 'explicitly using the racial nature of adecision to determine the decisionmakingprocess'). Instead of reallocating the politicalstructure in the State of Michigan, Proposal 2 ismore akin to the 'repeal of race-related legislationor policies that were not required by the FederalConstitution in the first place,' Crawford, 458 U.S.at 538, an action that does not violate the EqualProtection Clause." (Opinion at 11.)
With respect to the first assertion that Proposal 2'scoupling of minorities and women somehow undoes this
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Court's restructuring doctrine, the panel negates the holdingsin Hunter and Seattle in two ways. First, it treats theinterests of minorities and women as if they were one and thesame. Beyond the conspicuous absence of any empiricalbasis for this far-fetched (and, we think, unsustainable)claim, the rights implicated, as in all Fourteenth Amendmentrace cases, are personal to members of separate minoritygroups. See, e.g., Seattle, 458 U.S. at 474 ("For presentpurposes, it is enough that minorities may consider busingfor integration to be 'legislation that is in their interest.' . . .Given the racial focus of Initiative 350, this suffices totrigger application of the Hunter doctrine.... The initiativeremoves the authority to address a racial problem ... in sucha way as to burden minority interests.") (internal citationsomitted); see also Hunter, 393 U.S. at 391 ("although the lawon its face treats Negro and white, Jew and gentile in anidentical manner, the reality is that the law's impact falls onthe minority."). That Proposal 2 is still more draconian in itsreach than either Initiative 350 or the Akron ordinance doesnot annul the constitutional violation; if anything it multipliesthe restructuring problem as to members of eachclassification who must "surmount a considerably higherhurdle" politically. See Seattle, 458 U.S. at 474. See alsoHunter v. Underwood, 471 U.S. 222, 232 (1985) (holdingthat an additional purpose to discriminate against a group notsubject to strict scrutiny "would not render nugatory thepurpose to discriminate against all blacks.").
Nor does the restructuring principle established by thisCourt depend one whit upon whether "[t]he challengedenactments... ma[ke] it more difficult for minorities toobtain protection from discrimination" as opposed to "racialpreferences through the political process." (Opinion at 11)(emphasis in original). While this distinction may describethe facts of Hunter, it was irrelevant to the holding. See 391U.S. at 392-93 ("the State may no more disadvantage anyparticular group by making it more difficult to enact
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legislation in its behalf than it may dilute any person's voteor give any group a smaller representation than another ofcomparable size."). And this proposed distinction is defeatedby both the facts and the holding of Seattle. Initiative 350had nothing to do with "protection from discrimination"; thebusing at issue was not designed to remedy or forestall anydiscriminatory treatment through de jure segregation, butrather concerned voluntary busing to integrate schoolchildrenotherwise separated by de facto housing segregation. As thisCourt observed, while the nullified busing program was notan anti-discrimination program, Hunter governed the casebecause it involved legislation "inur[ing] primarily to thebenefit of the minority." See Seattle, 458 U.S. at 472.8
Indeed, were the touchstone of the restructuring doctrine, asthe panel would have it, a strict requirement that thecontested legislation impact "protection from discrimination"as opposed to simply benefiting minorities, Initiative 350would not have qualified for its application.9
8 Significantly, the dissent by Justice Powell did not identify thepanel's purported distinction as a basis for its disagreement with themajority opinion.
9 The panel's one-sentence treatment of this Court's decision inCrawford v. Board of Education, 458 U.S. 527 (1982), is also exactlywrong. Crawford upheld Proposition 1, a popularly-enacted amendmentto the California constitution that overrode an unusually broad judicialinterpretation of the state constitution's equal protection clause permittingracial busing to redress de facto segregation. See id. at 530-36 & n.12(noting that "[i]n this respect this case differs from the situation presentedin [Seattle]."). Proposition 1 thus effected a "mere repeal" of theCalifornia Supreme Court's busing order which stemmed from a findingthat the state constitution not only permitted but required state schoolboards "to take reasonable steps to alleviate segregation in the publicschools." See id. at 530 (internal citations omitted). Unlike Proposal 2,the "mere repeal" in Crawford did not fundamentally alter the politicalprocess for racial minorities.
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It also appears that the panel did not grasp the nature orextent of the restructuring of the political process thatProposal 2 imposes if the affected institutions, and the peopleof Michigan, are to maintain the admissions policies upheldin Grutter. The panel's assertion that "reallocating thepolitical structure in the State of Michigan" is not whatProposal 2 requires if those policies are to be restoredsuggests, at a minimum, that the panel neither saw norappreciated that what was previously the domain ofuniversities' administrations and admissions committees isachievable in the wake of Proposal 2 only by constitutionalamendment at a statewide level. See Amar & Caminker,"Equal Protection, Unequal Political Burdens, and theCCRI," 23 Hastings Const. L.Q., 1019,1049-53 (1996).
CONCLUSION
The state entities in this case stipulated to a preservationof the status quo in order that the State Universities andthousands of students could complete the current admissionscycle in reliance upon the entirely justifiable expectationswith which they went forward. With barely a wink at theseinterests, an emergency motions panel extinguished them onthe basis of a wholesale reconfiguration of this Court'spolitical restructuring doctrine in the area of race, somistaken as to make that jurisprudence unsupportable on itsown terms. It effected this alteration, moreover, without anyevidentiary record, and without the benefit of considerationby the district court and upon but two days for briefing by theparties.
This case may well find its way to this Court. If andwhen it does, it should be upon a properly developed andbriefed record. Until then, a premature and badly flawedconstruction of this Court's rulings in Hunter and Seattleshould not be permitted to quell the reasonable expectationsof applicants to the University of Michigan and requirerespected universities to invent a brand new admissions
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process overnight so as to create two sets of criteria by whichapplicants will be admitted or denied, based on nothing morethan the dates on which they submitted their applications.
January 17,2007
Respectfully submitted,
7s/ Mark RosenbaumMARK ROSENBAUM
Counsel of Record
LAURENCE H. TRIBEHauser Hall 4201575 Massachusetts AvenueCambridge, MA 02138(617)495-4621
