Does the Equal Protection Clause guarantee unequal treatment?

October 14, 2013 | By RALPH KASARDA

Tomorrow, the Supreme Court will hear oral argument in Schuette v. Coalition to Defend Affirmative Action. The issue in that case is whether the Equal Protection Clause guarantees individuals the right to unequal – or preferential – treatment.  Logically, the answer should be no.  The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.  In other words, we are all equal before the law.   But that’s not what the Sixth Circuit held when it invalidated Michigan’s ban on discrimination in any form.   According to that court, Michigan must forever allow individuals to seek preferential treatment based on their race.

Tomorrow, the justices should have many interesting and difficult questions on this issue.  But you won’t have to be at the Court in Washington D.C. to know what happens.  PLF staff attorney, Joshua Thompson, will be there for us tweeting live.  You can get the latest updates by following @jptizzle on Twitter.  While you’re at it, follow PLF, too:  @PacificLegal.

Before that, you may want to know more about Schuette v. Coalition to Defend Affirmative Action.  In Schuette, proponents of racial preferences challenged the Michigan Civil Rights Initiative, Proposal 2.  In 2006, Michigan voters approved Proposal 2 which amends the Michigan constitution to prohibit the state and its public universities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.  A similar law in California has been upheld by the Ninth Circuit, twice, and by the California Supreme Court.  But the Sixth Circuit relied upon the equal protection political structure doctrine to hold that Michigan’s ban on unequal treatment denies members of certain races equal protection of the laws.

In the Sixth Circuit’s view, a constitutional amendment that prohibits discrimination and bans all racial preference programs unconstitutionally restructures the political process.  The court reasoned that, since Proposal 2 amended the state’s constitution to repeal all state racial preference programs, it would take another constitutional amendment to reinstate them.  According to the court, that restructured the political process by placing an unfair burden on minorities in their effort to seek beneficial legislation – even though such legislation may be offensive to the Fourteenth Amendment.

The Supreme Court first employed an equal protection political structure analysis in Hunter v. Erickson.  There, city voters repealed a fair housing ordinance that banned discrimination in the sale or lease of real property and passed an amendment that created a more burdensome process for minorities to seek such protection against discrimination.  The Supreme Court held these actions violated equal protection.  But Hunter should not apply to Proposal 2, because the challenged amendment in that case stripped individuals of their protection from discrimination.  Proposal 2 does just the opposite.  It prohibits discrimination and mandates equal treatment.

In Washington v. Seattle Sch. Dist. No. 1, voters passed a state initiative that prohibited school busing for desegregation, but allowed busing for other purposes.  The Supreme Court held the state initiative violated the political structure doctrine, and explained: “When the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on distinctions based on race.”  In other words, an enactment only raises equal protection political structure concerns if it singles out racial issues or racially oriented legislation.  Seattle should not apply to Proposal 2, because Proposal 2 does not not address “only a racial problem,” like the initiative in Seattle.  It prohibits discrimination and any preference on the basis of race, sex, color, ethnicity, or national origin.  Nor was Proposal 2 written to target and single out only university admissions.  It is a uniform statewide ban on all forms of racial discrimination that applies broadly to the major policy areas of public employment, public contracting, as well as public education.

Even the Los Angeles Times believes that the Sixth Circuit’s decision should be reversed.  The Supreme Court’s ultimate decision in Schuette will determine the fate of laws in other states.  Besides California and Michigan, voter initiatives prohibiting discrimination and preferences based on race in public employment, education, and contracting have passed and become law in Washington (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012).  New Hampshire and Florida ban racial preferences in college admissions through legislation and by executive order.

To find out about tomorrow’s oral argument in Schuette, remember to follow @jptizzle on Twitter.