Sixth Circuit's political structure analysis: Structure or chaos?

April 03, 2013 | By RALPH KASARDA


After 31 years, the Supreme Court will finally take another look at the “political structure” doctrine.  If you didn’t read Monday’s post by PLF College of Public Interest Law fellow, Jonathan Wood, you may be unfamiliar with that doctrine.  In 1969, and again in 1982, the United States Supreme Court relied on a theory of equal protection analysis, called the political structure doctrine, to invalidate state laws under the Fourteenth Amendment.  Since 1982, however, the Court has not relied upon that theory in any case requiring equal protection analysis.  This has left some to wonder whether the doctrine is still good law.  Questions along those lines are likely to be answered when the Court reviews the Sixth Circuit’s decision in Schuette v. Coalition to Defend Affirmative Action, a case where that court specifically relied upon the political structure doctrine to invalidate a state voter initiative that guarantees equal protection.  PLF attorneys have filed numerous briefs in this case, including this one describing the chaos caused by the Sixth Circuit’s decision.

According to the political structure doctrine, “the Equal Protection Clause prohibits a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”

Confused?  Don’t be.  Here’s a lightning fast look at the two cases defining the political structure doctrine, and the Michigan law being challenged in Schuette.

The Supreme Court first employed an equal protection political structure analysis in Hunter v. Erickson (1969).  There, city voters repealed a fair housing ordinance that banned discrimination in the sale or lease of real property and passed an amendment that created a more burdensome process for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.  The old ordinance protected minorities by mandating their right to be free from discrimination.  But by repealing the anti-discrimination ordinance and making the enactment of such laws more difficult to pass in the future, the voters encouraged racial discrimination in housing matters.  The Supreme Court held these actions violated equal protection, because the effect was to restructure the political process to make it more difficult for minorities to protect themselves against discrimination.

In Washington v. Seattle Sch. Dist. No. 1 (1982), 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.

In Schuette, the Supreme Court will examine the Michigan Civil Rights Initiative, Proposal 2, which, like the challenged law in Seattle, was also a state initiative.  Proposal 2 amends the Michigan constitution to prohibit the state and 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 was upheld by the Ninth Circuit, twice, and by the California Supreme Court.  But the Sixth Circuit held 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 like the laws in Hunter and Seattle.  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, this places an unfair burden on minorities.

Proposal 2 is not like the laws invalidated by the Supreme Court in Hunter and Seattle.  Here are just a few reasons.  First, in Hunter, the challenged amendment repealed a fair housing ordinance that required equal treatment, not preferential treatment.  Second, Proposal 2 does not address “only a racial problem,” like the initiative in Seattle.  It prohibits 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.

Odd, isn’t it, that a state initiative requiring equal protection could violate equal protection?  But that’s what the Sixth Circuit held.  In the court’s view, even if the Fourteenth Amendment does not require that States establish race-conscious affirmative action programs at their public universities, it bars them from eliminating such programs through amendments to their constitutions.  Well, after all, the Sixth Circuit–not the Ninth–is the most reversed federal court of appeals in the nation.

Does the Fourteenth Amendment give groups the right to pursue racial preferences? Or may a state amend its constitution and pass legislation to adopt a position of strict racial neutrality?  Stay tuned.