Ten days ago, Governor Brown signed AB 2646 into law. The stated purpose of the statute is return the law to where it was before the Supreme Court issued its opinion in Schuette v. BAMN — the case that upheld the Michigan voters ability to amend their constitution to prohibit racial preferences. The statute basically creates a cause of action for a Hunter/Seattle violation: if some government body passes a law that burdens an individual’s right to engage in the political process, this newly enacted statute would allow them to bring a cause of action challenging the law.
The problem with this whole statute is that the law already provides for that remedy. The statute doesn’t do a thing! The Supreme Court’s decision in Schuette did not overturn the Hunter/Seattle doctrine. All the Schuette decision does is say that when the voters of a state choose to ban racial preferences, the Hunter/Seattle doctrine does not prohibit them from doing so. As PLF made clear in its amicus brief in the case, the Equal Protection Clause is not violated by a constitutional amendment that requires the state to treat everybody equally.
The concurrence in Schuette — written by Justice Scalia and joined by Justice Thomas, argued that the Hunter/Seattle doctrine should be explicitly overruled, but that opinion did not carry the day. After the Supreme Court’s decision in Schuette, plaintiffs can still bring claims under the Equal Protection Clause and argue a violation because of Hunter/Seattle. After Schuette, however, plaintiffs may not successfully argue that a state’s ban on racial preferences violates the Constitution’s Equal Protection Clause.
And this statute can do nothing to overturn California’s ban on racial preferences. Proposition 209 was enacted by voters in 1996, and added article I, Section 31 to the California Constitution. A statute cannot overturn the state’s constitution. As readers may recall, the legislature tried to change Proposition 209 earlier this year — by putting to voters a new constitutional amendment that would have allowed universities to consider race — but that bill failed when the Asian community stood up against it. And absent a constitutional amendment, there is nothing that the legislature can do to limit the force of California’s ban on racial preferences.
All in all, this statute is a mystery. Hunter/Seattle is still good law, and plaintiffs may try to bring equal protection claims using the Hunter/Seattle theory. Proposition 209 is good law, and this statute does nothing to disturb the state’s ban on racial preferences. And, it should go without saying, that Schuette is still good law. There is nothing the California Legislature can do to change the Supreme Court’s decision.