In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN,Petitioner,

v.

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION

AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY

ANY MEANS NECESSARY (BAMN), ET AL., Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

George B. Washington Counsel of recordShanta DriverMonica R. SmithJoyce P. SchonRonald CruzSCHEFF, WASHINGTON& DRIVER, P.C.645 Griswold, Suite 1817Detroit, Michigan 48226(313) 963-1921scheff@ameritech.net

Counsel for RespondentsCoalition to Defend AffirmativeAction, et al.

NO. 12-682

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Winifred KaoASIAN LAW CAUCUS55 Columbus AvenueSan Francisco, CA 94111(415) 896-1701 x 102(415) 896-1702 (fax)winifredk@asianlawcaucus.org

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QUESTIONS PRESENTED

Whether a state constitutional amendment violatesthe Equal Protection Clause by prohibiting black,Latina/o, Native American and other minority citizensfrom proposing through the democratic means that allother citizens may use that state university facultiesand governing bodies adopt lawful, racially-consciousadmissions plans in order to increase the opportunitiesfor minority students to attend those universities?

Whether a state constitutional amendment violatesthe Equal Protection Clause by creating a substantivestandard and an individual right of action to enforcethat standard which selectively regulate and limit thestate universities’ ability to admit black, Latina/o,Native American and other minority students?

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PARTIES TO THE PROCEEDING

The Coalition Respondents accept the listing of theparties by the Petitioner.

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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

A. Introduction: the actual issues atstake. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. The factual reality that the AttorneyGeneral has ignored. . . . . . . . . . . . . . . 9

C. The decisions below. . . . . . . . . . . . . . 13

REASONS FOR GRANTING THE WRIT . . . . . . . 19

I. THE COURT SHOULD GRANT THEWRIT TO RESOLVE A DIRECT SPLITBETWEEN THE SIXTH AND THENINTH CIRCUITS ON AN ISSUE OFS U R P A S S I N G N A T I O N A LIMPORTANCE. . . . . . . . . . . . . . . . . . . . 19

A. There is an open, deep, andirreconcilable split between the Sixthand Ninth Circuits. . . . . . . . . . . . . . . 19

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B. The issues on which the circuits aresplit are of surpassing importance. . . 21

II. THE COURT SHOULD GRANT THEWRIT BECAUSE THE NINTH CIRCUITHAS DEPARTED FROM BINDINGDECISIONS OF THIS COURT ANDF R O M T H E F U N D A M E N T A LCOMMANDS OF THE FOURTEENTHAMENDMENT ITSELF. . . . . . . . . . . . . . 24

III. THE COURT SHOULD GRANT THEWRIT BECAUSE MICHIGAN’SPROPOSAL 2 HAS CREATED, FOR THEFIRST TIME IN MANY DECADES, ALAW THAT REGULATES AND LIMITSTHE EDUCATIONAL OPPORTUNITIESOF A CLASS OF CITIZENS DEFINEDBY THEIR RACE. . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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TABLE OF AUTHORITIES

CASES

Brown v. Bd. of Educ., 347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . 21, 25

Coalition for Economic Equity v. Wilson,122 F.3d 692 (9th Cir. 1997) . . . . . . . . . . . passim

Coalition to Defend Affirmative Action v. Brown,674 F.3d 1128 (9th Cir. 2012) . . . . . . 3, 10, 19, 20

Coral Const., Inc. v. City and County of SanFrancisco,50 Cal.4th 315, 235 P.3d 947 (2010) . . . . . . . . . 21

Crawford v. Bd. of Educ. of City of Los Angeles,458 U.S. 527 (1982) . . . . . . . . . . . . . . . . . . . . . . 19

Grutter v. Bollinger,539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . passim

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

Hurd v. Hodge,334 U.S. 24 (1948) . . . . . . . . . . . . . . . . . . . . . . . 31

Parents Involved in Community Schools v. SeattleSchool District No. 1,551 U.S. 701 (2007) . . . . . . . . . . . . . . . . . . . . 4, 27

Plessy v. Ferguson,163 U.S. 537 (1896) . . . . . . . . . . . . . . . . . . . . . . 31

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Railway Express Agency, Inc. v. New York,336 U.S. 106 (1949) . . . . . . . . . . . . . . . . . . . 30, 31

Regents of the University of California v. Bakke,438 U.S. 265 (1978) . . . . . . . . . . . . . . . . . . . . . . . 7

Romer v. Evans,517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . 26

Washington v. Seattle School District No. 1,458 U.S. 457 (1982) . . . . . . . . . . . . . . . . . . passim

CONSTITUTIONS

U.S. Const. amend. XIV, Equal Protection Clause . . . . . . . . . . . . . . passim

U.S. Const. amend. XV . . . . . . . . . . . . . . . . . . . . . . 21

CA Const. art. 1, sec. 31, Proposition 209 . . . passimsec. 31(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

MI Const. 1850 art. 13, secs. 6-8 . . . . . . . . . . . . . . . 9

MI Const. 1963, art. 1, sec. 2 . . . . . . . . . . . . . . . . . . 1

MI Const. 1963, art. 1, sec. 26, Proposal 2 . . . passimsec. 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3sec. 26(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

MI Const. 1963, art. 8, sec. 5 . . . . . . . . . . . . . . . . . . 9

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OTHER

Brief Amicus Curiae of the Pres. And Chancellors ofthe Univ. of California, Fisher v. University ofTexas, No. 11-345 . . . . . . . . . . . . . . . . . . . . . . . . . 7

Eric Foner, Reconstruction, Harper & Row (1988) 31

Tim Groseclose, “Report on Suspected Malfeasancein UCLA Admissions and the AccompanyingCoverup,” available at mages.ocregister.com/newsimages/news/2008/08/CUARSGrosecloseResignationReport.pdf (last visited Feb. 2,2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

H. Hyman & W. Wiecek, Equal Justice Under Law319 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

David Leonhardt, “The New Affirmative Action,”New York Times, Sept. 30, 2007 . . . . . . . . . . . . 32

Off. of the Registrar, Univ. of Mich., Tables 843 and844 at http://ro.umich.edu (last visited Feb. 2,2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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JURISDICTION

The Coalition Respondents accept the Petitioner’sstatement of jurisdiction.

CONSTITUTIONAL PROVISIONS INVOLVED

In addition to the Constitutional provisions cited bythe Petitioner, the following provisions are relevant tothis case:

Article 1, Section 2 of the Michigan Constitutionprovides in relevant part as follows:

No person shall be denied the equal protection ofthe laws; nor shall any person be denied theenjoyment of his civil or political rights or bediscriminated against in the exercise thereofbecause of religion, race, color or nationalorigin. . . .

Article 1, Section 26 of the Michigan Constitutionprovides in relevant part as follows:

(1) The University of Michigan, MichiganState University, Wayne StateUniversity, and any other public collegeor university, community college, orschool district shall not discriminateagainst, or grant preferential treatmentto, any individual or group on the basis ofrace, sex, color, ethnicity, or nationalorigin in the operation of publicemployment, public education or publiccontracting.

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* * *

(6) The remedies available for violations ofthis section shall be the same, regardlessof the injured party's race, sex, color,ethnicity, or national origin, as areotherwise available for violations ofMichigan's anti-discrimination law.

(7) This section shall be self-executing. If anypart or parts of this section are found tobe in conflict with the United StatesConstitution or federal law, the sectionshall be implemented to the maximumextent that the United StatesConstitution and federal law permit. Anyprovision held invalid shall be severablefrom the remaining portions of thissection.

STATEMENT OF THE CASE

A. Introduction: the actual issues at stake.

The Coalition Respondents agree that as toadmissions in higher education, there is a directconflict between the governing decisions of the SixthCircuit and the Ninth Circuits, agree that the issuesdividing the circuits are of paramount importance, andagree with Michigan’s Attorney General that this Courtshould grant the writ of certiorari to resolve the conflictbetween the Sixth Circuit’s en banc decision in thiscase and the Ninth Circuit’s decisions in Coalition forEconomic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997)

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and Coalition to Defend Affirmative Action v. Brown,674 F.3d 1128 (9th Cir. 2012).

The Coalition Respondents seek review, however,not because the Sixth Circuit was wrong, but becauseit was right. They ask this Court to extend theprotections for the right to political equality recognizedby the Sixth Circuit’s en banc opinion to California andthe other four states that have adopted constitutionalamendments identical to the one at issue here.

The Coalition Respondents emphatically disagreewith the Attorney General’s attempt to frame theissues presented here by characterizing Article 1,Section 26 of the Michigan Constitution (“Proposal 2”)as an amendment that “prohibits discrimination,”“mandates equal treatment,” or “eliminatespreferences.”

To begin with, this case has nothing to do with astate’s power to ban “discrimination.” Michiganadopted a constitutional ban against discrimination onaccount of race and national origin in 1963. MI Const1963, art 1 sec 2. Proposal 2 repeated that ban, butonly for the purpose of creating a more acceptableappearance for its real objective. MI Const 1963, art1, sec 26(2). There is not, and never has been, adispute over whether Michigan’s preexisting ban ondiscrimination was constitutionally valid.

The real objective of Proposal 2—which is a word-for-word copy of California’s Proposition 209—is its banon “granting preferential treatment to” persons onaccount of “race, sex, color, ethnicity, or nationalorigin…” MI Const 1963, art 1, sec 26(2); CA Const art

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1, sec 31. The framers of these proposals chose theterm “preferential treatment” carefully because itappealed to prejudice. But in higher education, theterm “preferences” in practice has always meantdisparities in the grades and test scores, whoseneutrality and predictive force have long been sharplydisputed.

In legal terms, Proposal 2 and Proposition 209assert the “theory of the color-blind Constitution,”which, in higher education, has meant no departuresfrom the grade and test score criteria for the purpose ofadmitting minority students.

As this Court has held on many occasions, “…as anaspiration Justice Harlan’s axiom [of the color-blindConstitution] must command our assent,” but “[i]n thereal world, it is regrettable to say, it cannot be auniversal constitutional principle.” Parents Involved inCommunity Schools v. Seattle School District No. 1, 551U.S. 701, 788 (2007)(Kennedy, J., concurring in thejudgment). Despite that holding, however, the twoproposals use the axiom of the color-blind Constitutionas a universal principle to limit the political right ofminority residents even to propose, through theprocedures available to all others, the adoption of aracially-conscious admission plan and as a universalprinciple to regulate admissions at state universitiesincluding by private actions to enforce that principle.

In analyzing these proposals, we begin with the realworld that the Attorney General has completelyignored. As this Court knows, and as is set forth inmore detail below, Michigan’s universities, like most inthe nation, have adopted adjusted grade point averages

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and scores on standardized tests as the baselinecriteria for admissions. But over the course of decades,the universities have identified numerous factors thatjustify departures from those criteria. Until thepassage of Proposal 2, the elected university governingboards had complete control over all admission criteria,and the state’s residents could therefore add to, change,or delete any of those factors through a simple majorityvote by the faculties or by the elected governing boardswho supervised those faculties.

Proposal 2, like Proposition 209 before it, selectivelychanged that. The universities may now adopt anyfactors authorizing departures from their baselinecriteria of grades and test scores for anypurpose—except that they may not consider race for thepurpose of admitting black, Latina/o or NativeAmerican applicants. Thus, Michigan’s black, Latina/oand Native American residents may no longer evenpropose that the governing boards adopt the exact planthat this Court held was the only practical means bywhich their children could be admitted to the state’sleading universities. Grutter v. Bollinger, 539 U.S. 306,332 (2003).

The Sixth Circuit rightly decided that this selectiverestriction on the political rights of racialminorities—and of black, Latina/o and NativeAmerican residents in particular—violated theguarantee of political equality protected by this Court’sdecisions in Hunter v Erickson, 393 U.S. 385(1969) andWashington v. Seattle School District No. 1, 458 U.S.457 (1982). On that issue, Wilson held directly to thecontrary.

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Proposal 2, however, contains yet another limit onminority rights, which the Sixth Circuit majority didnot need to reach, but which Wilson peremptorilyrejected. By definition, a selective admissions systemnecessarily includes numerous implicit and explicit“preferences” that the university uses to determine thecharacter and mix of the students it admits. ButProposal 2 applies its “no preferences” standard only tothose alleged preferences that benefit women andracial minorities and it creates a private right of actionto enforce that prohibition, a right that has not everbeen granted to any other critic of the university’sstandards. The proponents claim that its ban isneutral, but the only explicit consideration of race is forthe purpose of admitting minority students. Inpractice, Proposal 2 hands the opponents of minorityadmissions a legal sword to wield whenever andwherever a university admits what the opponentsbelieve are too many minority students.

The Attorney General claims that it is impossible todetermine who Proposal 2 actually burdens. But inthe real world, there is no doubt on that question. In2003, the University of Michigan’s attorneys told thisCourt that eliminating affirmative action would causea one-third fall in minority admissions at its LawSchool. They were too optimistic. In six years,Proposal 2 has slashed the share of black, Latina/o andNative American students in the entering classes inMichigan’s undergraduate college by one third, slashedthe share of those students at the Law School by 40 to50 percent, and slashed the share of those students atthe Dental and Medical Schools by 70 percent or more.

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Off. of the Registrar, Univ. of Mich., Tables 843 and844 at http://ro.umich.edu (last visited Feb. 2, 2013).

The President and Chancellors of the University ofCalifornia have informed this Court that the effects inCalifornia are even worse. The number of blackstudents in the entering classes at UCLA and Berkeleyhas fallen by 50 percent while Latina/o admissionshave not reached pre-209 levels despite a 25 percentincrease in the percentage of Latina/os in that state’shigh-school graduating classes. As the UC officialsinformed this Court, they have found no way to reversethat precipitous fall. See Brief Amicus Curiae of thePres. And Chancellors of the Univ. of California, Fisherv. University of Texas, No. 11-345, at 18-19, 31-32.

Justice Blackmun once declared that this Court“dare not” adopt the theory of the color-blindconstitution. Regents of the University of California v.Bakke, 438 U.S. 265, 407 (1978)(Blackmun, J.,dissenting). That is far truer today. Half of all of thechildren born in the country are racial “minorities.” Already, half or more of the high-school students innumerous states are black and Latina/o. But as thenation inexorably becomes a majority-minority nation,these proposals mean that it will have far fewer blackand Latina/o lawyers, doctors, and leaders in all fieldsthan it has today.

The Attorney General claims that Michigan’scitizens chose this future by approving Proposal 2 by a58 to 42 percent margin. He neglects to tell this Courtthat nine out of ten black citizens cast votes against it,that two out of three white citizens cast votes for it,and that it passed solely because white voters

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outnumbered minority voters by six to one. R. 222-2,Dep. of Linski, Ex. 3. Even more significantly, he offersno reason for conferring upon an electoral majority thepower to deny minority citizens of the right to proposethrough means equal to those available to others thoselawful plans that are essential if their children are tobe admitted to the state’s universities.

If state universities, subject to review by this Court,undeniably have the right to determine under equalprocedures when and whether to adopt affirmativeaction programs in particular circumstances, the SixthCircuit correctly recognized that there is no state’sright to ban all officials from ever considering and allcitizens from ever proposing such programs.

In fact, if the state’s right proposed by Michigan’sAttorney General were recognized, it would allow thestates, acting one by one, to force the theory of thecolor-blind Constitution upon the FourteenthAmendment itself, simply by choking off any procedureby which any official or citizen could ever assert acompelling interest.

There is no dispute that two of the original purposesof the Fourteenth Amendment were to provide afederal guarantee of political equality to the newly-freeslaves in all areas except voting and to eliminate thespecial laws that restricted the employment, educationand other rights of the new black citizens. As is setforth below, Proposal 2 and Proposition 209 have thedistinction of violating both of these core, originalpurposes of the Fourteenth Amendment itself.

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B. The factual reality that the Attorney Generalhas ignored.

From 1863 forward, the elected Regents of theUniversity of Michigan and, later, the elected Board ofTrustees of Michigan State University and Board ofGovernors of Wayne State University have had fulldiscretion to establish the admissions standards forany college or school that they have established. MIConst. 1850 art 13, secs. 6-8; MI Const. 1963, art. 8,sec. 5. They have delegated some of those tasks tofaculties and university administrators, but as theSixth Circuit concluded, the governing boards havealways retained the right to approve any admissionstandards that the faculties might adopt. Pet. App. 27-33a.

In the early 1960s, the University of Michigan and,later, the other two state universities first adoptedadjusted grade point averages and standardized testscores as their baseline criteria. From the beginning,however, all three of Michigan’s constitutionally-created universities departed from those criteria inorder to admit veterans, poorer and working-classstudents, rural students, athletes, children of alumni,children of donors and politicians, and numerous othercategories of applicants.

At first, none of the universities recognizedexceptions for the purpose of increasing minorityadmissions. But the results were disastrous. In the1960s, the University of Michigan Law Schoolgraduated 3,032 white students, eight black students,and, as far is known, no Latina/o or Asian students. R.222-19; UM Law School Graduates. The reasons for

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the virtual exclusion of minority students are rooted inthe reality of how adjusted grade point averages andstandardized test scores operate in the real world as itexisted then—and, with important changes, as it existstoday.

Six decades after Brown, the large majority ofMichigan’s black, Latina/o, and Native Americanstudents attend largely segregated elementary andsecondary schools. Even though the segregation is nowde facto rather than de jure, these schools still havefewer and less qualified teachers; less resources andprograms; non-existent counseling programs; and soon. If the colleges adjust grade point averages upwardfor students who took advanced placement and similarclasses, the graduates from these segregated schoolssimply cannot fairly compete with those who attendmore privileged schools.

There has been important progress, of course, andtoday, significant numbers of black and Latina/ostudents attend integrated suburban schools or centralcity magnet schools that offer far greater opportunities. But even for the black and Latina/o students in thoseschools, equality has not been achieved. In thesuburban schools, they face racial isolation and, attimes, hostility. On average, their families have lessmaterial and educational resources; and they, unliketheir white peers, face the pervasive stigma ofinequality that still harms the hearts and minds ofminority students today. Even on the criteria ofadjusted grade points, they face distinct obstacles incompeting with their white peers.

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But the difficulty on the grade point component ofthe admission criteria pales in comparison with theobstacles presented by the standardized tests. AsWard Connely testified in a deposition that is part ofthe record of this case, black students from the richestquintile of income still score lower, on average, thanwhite students from the poorest quintiles. The reasonsfor that include differences in the educationalprograms, how the test questions are selected,language background and difficulties, the specialanxiety that minority test-takers face due to negativeracial stereotypes, and a host of other factors. But theend result is beyond dispute: racial minorities are at alarge disadvantage on the standardized tests.

Before the 1970s, the rigid application across raciallines of the baseline criteria meant that few inMichigan’s large black and small Latina/o and NativeAmerican communities had any real hope of attendingthe University of Michigan, however hard they worked. But in 1970, black and white students, joined bysupporters across the state, spoke, rallied and stayedaway from classes in order to win increased enrollmentfor black and other minority students. Theyspecifically used the political procedures that Proposal2 has now closed to persuade the Regents to adopt theUniversity of Michigan’s first affirmative action plans.

Those plans considered race and thus departed fromthe grade-test score criteria in order to admit minoritystudents. They opened the doors of the universities tothe qualified minority graduates of the high schools inMichigan and in the country, and soon the proud black,Latina/o and Native American graduates fromMichigan’s universities joined those from other state

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and national universities to form the black andLatina/o leaders who are so prominent and soimportant today.

When those programs were challenged because theysupposedly granted unlawful “preferences” to black,Latina/o and Native American applicants, Grutterupheld the Michigan Law School plan because it wasthe only practical way to further the “paramount”national interest in assuring that the path toleadership was open to qualified black, Latina/o andNative American students.

Two days after Grutter was decided, the supportersof Proposal 2 announced the campaign to amend thestate constitution to overrule Grutter by adopting acopy of California’s Proposition 209. As noted, Proposal2 deprived racial minorities of equal political rights byprohibiting the governing bodies from adopting bysimple majority vote any plan that granted“preferential treatment” to minority applicants. Proposal 2 also substantively banned the universitiesfrom departing from the grade-test score criteria forthe purpose of admitting minority applicants and itbacked up that ban by declaring its provisions “selfexecuting,” which automatically granted a private rightof action for any person who claimed to be aggrieved bythis asserted “preferential treatment.” Significantly,no person has ever been given such a private right ofaction to challenge any of the myriad of otherdepartures from grades and test scores or of the otherexplicit and implicit preference in the university’sadmissions criteria. MI Const, art 1, sec. 26(7), CaConst, art 1, sec. 31(7).

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Proposal 2 passed by the racially-polarized votedescribed above. Since that day, the doors have closedto many of the black, Latina/o and Native Americanstudents who had hoped to attend the Michigan’suniversities, including, above all, the University ofMichigan. Moreover, particular national groups amongMichigan’s Asian and Arab populations, who havehistorically been excluded for reasons analogous tothose set forth in Grutter, can no longer even proposethat the universities should adopt special admissionsprograms for them.

The Proposals have meant that Michigan’s andCalifornia’s universities may consider any form ofinequality and diversity in their admissions policiesexcept the deepest form of inequality and mostimportant and difficult type of diversity. Proposal 2and Proposition 209 have meant that universityofficials must be blind to the racial inequality that isglaringly obvious in every metropolitan area in thecountry.

C. The decisions below.

The Coalition plaintiffs filed this action on the dayafter the November 2006 general election whereProposal 2 passed. In relevant part, they asserted thatProposal 2 violated the right to political equalityprotected by Hunter and Seattle and the FourteenthAmendment’s ban on special laws that createdstandards and remedies applicable to racial minoritiesalone.

A month after the election, another group ofplaintiffs (the “Cantrell plaintiffs”) filed suit, asserting

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solely a claim of unequal political rights under Hunterand Seattle. The district court consolidated the actions,and they have been joined together ever since.

At the conclusion of discovery, the AttorneyGeneral, citing Wilson, filed a motion for summaryjudgment asserting that Proposal 2 did not violateHunter and Seattle because minorities were notentitled to political equality when they fought for“preferences” and asserting that the special restrictionsand causes of action for challenging minorityadmissions were consistent with the FourteenthAmendment.

On the count of political equality, the Coalitionplaintiffs opposed the Attorney General’s motion on thegrounds that Wilson’s “preferences” limit to equalitycontradicted this Court’s decisions in Hunter and,especially, Seattle and that the theory of the color-blindConstitution that underlie both the proposals and theWilson opinion was inconsistent with dozens ofdecisions by this Court.

On that count, the Coalition plaintiffs furtherasserted that the standards that Wilson implicitlyadopted for determining what was a “preference” inhigher education—namely, the adjusted grade pointaverages and test score baselines—could not possiblybe used for determining rights to political equalityunder the Fourteenth Amendment. In particular, theyasserted, it made no sense to assert that racialminorities had the right to political equality in fightingagainst their exclusion from the universities, but notwhen they asked for departures from the standardsthat effectuated that exclusion. The Coalition offered

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evidence on those points, asserted that there was afactual dispute on them, and asked for a trial to provethe baseline standards were not suitable fordetermining the limits of political equality underHunter and Seattle. R.222, Coal. Resp. Summ. Judg.,at 24-34.

On their second claim, the Coalition plaintiffsasserted that Proposal 2 applied its preferencestandard and its private right of action only to theadmissions of women and of minorities, which violatedthe Fourteenth Amendment.

The Cantrell plaintiffs filed a cross motion forsummary judgment that asserted that Wilson’spreferences standard was not in accord with Hunterand Seattle.

On March 18, 2009, the district court granted theAttorney General’s motion for summary judgment anddenied the Cantrell plaintiffs’ cross motion forsummary judgment on the basis that Hunter andSeattle purportedly did not prevent an unequalstructure of government when racial minorities soughtan “advantage based on a racial classification.” Pet.App. Supp. 329a-330a, citing Wilson, 122 F.3d at 707. In reaching that conclusion, the district court did notaddress the factual evidence offered by the Coalitionplaintiffs as to the nature of the criteria being used todetermine “preferences” or “advantages” and whetherthose criteria were appropriate for defining the rightsto political equality that were and were not protectedby the Fourteenth Amendment. The district courtrejected the Coalition plaintiffs’ claim that Proposal 2was a special law on the grounds that there was no

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evidence that the electorate harbored a racial animuswhen it voted for Proposal 2. Pet. App. 319a.

The Coalition plaintiffs immediately appealed to theSixth Circuit, and the Cantrell plaintiffs appealed afterthe district court denied their motion to alter or amendthe judgment. Pet. App. 184a-193a.

On July 1, 2011, a divided panel of the Sixth Circuitreversed the district court and struck down Proposal2’s application to University admissions on the basisthat it had, indeed, created an unequal structure ofgovernment in violation of Hunter and Seattle. Thepanel explicitly rejected Wilson, calling the purporteddistinction between “preferences” and “discrimination” “controversial” and “obfuscating” and concluding thatthat limit was not consistent with Hunter or,especially, Seattle. Pet. App. 141a-147a.

Judge Gibbons dissented on the basis thatadmissions processes were committed to the facultiesand thus not a political process at all. Pet. App. 160a-178a. She expressed sympathy with Wilson’s“preferences” limitation, but declared that it wasunnecessary to reach that issue. Pet. App. 179a-181a.

The Attorney General petitioned for and wasgranted en banc review. On November 15, 2012, theSixth Circuit, sitting en banc, ruled by a vote of 8 to 7that Proposal 2 created an unequal structure ofgovernment in higher education, in violation of Hunterand Seattle, and, as a result, found that it need notaddress the Coalition plaintiffs’ second claim. The enbanc Sixth Circuit specifically affirmed the districtcourt’s conclusion that Proposal 2 had a “racial focus,”

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Pet. App. 22a-26a, found that the procedure foradopting admissions standards was a political process,Pet. App. 26a-33a, and concluded that Proposal 2violated Hunter and Seattle because it imposed onminority residents a political burden that no othercitizens had to endure when they sought changes inadmissions standards that furthered their interests. Pet. App. 35a-40a. The en banc panel specificallyrejected Wilson’s “preferences” limitation on politicalequality because it was “fundamentally at odds withSeattle.” Pet. App. 39a.

There were five separate dissenting opinions bymembers of the en banc panel, which can be onlybriefly summarized here.

Judge Gibbons, delivering the main dissent,reiterated and elaborated her view that the admissionsprocess was not a political process. Pet. App. 66a-78a. In contrast to her dissenting opinion on the panel, shereached the issues presented by Wilson and declaredher view that racial minorities did not have the right topolitical equality when they fought for “preferences.”Pet. App. 57a-66a.

Judge Boggs praised the principles announced byProposal 2, lamented that it would take eight years toelect enough opponents of affirmative action to thegoverning boards, and declared his opinion that themajority was “far afield” from Hunter and Seattle. Pet.App. 51a-55a.

Judge Rogers joined Judge Gibbons’ dissent andadded that he believed that it was hard to see how anygovernmental institution that had a subordinate body

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could pass a “no-race-preference” policy. Pet. App. 79a-80a.

Judge Sutton suggested that the 2006 vote meantthat state officials could not thereafter assert that thestate had a compelling interest for an affirmativeaction plan. Pet. App. 80a-81a. He declared thatProposal 2 “does not place ‘special burdens’ on racialminorities,” Pet. App. 83a, then declared that he “doesnot doubt that Proposal 2 places a burden on theproponents of affirmative action,” Pet. App. 88a, andfinally declared that to the extent that Proposal 2“disadvantages anyone,” it disadvantages groups that“together account for a majority of Michigan’spopulation.” Pet. App. 92a. He repeated Judge Boggs’claim that it would take too long for those opposed toaffirmative action to elect members of the governingboards, Pet. App. 86a-87a, and asserted thatMichigan’s electoral majority should have the right toend consideration of any affirmative action plans bythe quickest and simplest means available to thatmajority. Pet. App. 86a-88a.

Finally, Judge Griffin joined Judge Gibbons’dissent, except insofar as she said the procedures fordetermining admissions were not a political process,and called on this Court to overrule the “ill-advised”“political structure” doctrine announced in Hunter andSeattle. Pet. App. 96a.

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REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT THE WRITTO RESOLVE A DIRECT SPLIT BETWEENTHE SIXTH AND THE NINTH CIRCUITSON AN ISSUE OF SURPASSINGNATIONAL IMPORTANCE.

A. There is an open, deep, and irreconcilable splitbetween the Sixth and Ninth Circuits.

The split between the Sixth Circuit’s decision in thiscase and the Ninth Circuit’s decisions in Wilson andBrown could not be clearer. Michigan’s Proposal 2 andCalifornia’s Proposition 209 are identical. But theSixth Circuit held that Hunter and Seattle required itto strike down Proposal 2, while Wilson held thatHunter and Seattle did not even apply to Proposition209. Pet. App. 38a-41a; Wilson, 122 F.3d at 705-708.

Wilson held that Hunter and Seattle protectedminorities’ right to political equality when they foughtagainst “discrimination,” but not when they fought for“preferential treatment.” Id., at 708. It furtherdeclared that Proposition 209 addressed race in aneutral fashion. Id., at 705-707, citing Crawford v. Bd.of Educ. of City of Los Angeles, 458 U.S. 527 (1982).

The Sixth Circuit directly rejected Wilson’s attemptto exempt the right to equality in the fight for “so-called preferences” as “fundamentally at odds withSeattle.” Pet. App. 39a-41a. The Sixth Circuit foundthat Proposal 2 specifically burdened racial minorities,Pet. App. 26a-38a, and specifically rejected the claim

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that it was neutral or a mere repeal of an existingprogram. Pet. App., 41a-45a.

In Coalition v. Brown, which was decided after theSixth Circuit panel had struck down Proposal 2, manyof the organizations and individuals who are plaintiffsin this action asked the Ninth Circuit panel to holdthat Wilson did not apply in higher education. TheBrown panel declined because it believed it had tofollow Wilson. Id., 674 F. 3d at 1135. The NinthCircuit then denied en banc review, despite the evidentconflict with the Sixth Circuit’s panel decision anddespite the fact that the Sixth Circuit had alreadyheard arguments en banc. The split between the Sixthand the Ninth Circuits is thus not only deep, but alsoirreconcilable.

The direct split between the circuits is paralleled bya split within each circuit. Seven judges dissentedfrom the en banc opinion of the Sixth Circuit, Pet. App.51a-100a, and five judges dissented from the denial ofen banc review in Wilson, declaring that Proposition209 was unconstitutional under Hunter and Seattle. Wilson, 122 F.3d at 711-718 (Schroeder, Pregerson,Norris, Tashima, Hawkins, JJ, dissenting from den ofreh. en banc). Even fifteen years later, Judge Tashima,sitting as a member of the Brown panel, declared thathe still believed that Proposition 209 violated Hunterand Seattle and that he would so rule today if he didnot believe that Wilson required him to rule otherwise. Coalition v. Brown, 674 F.3d at 1136.

The reasoning of the Sixth Circuit also differssharply from a divided decision of the CaliforniaSupreme Court upholding Proposition 209 as applied to

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public contracting. Coral Const., Inc. v. City andCounty of San Francisco, 50 Cal.4th 315, 235 P.3d 947(2010). However, the standards normally used toevaluate bids, the statutory authority of those whodecide the successful bidder, and the interests andparameters for affirmative action in contracting differgreatly from the analogous aspects of admissions. There is not, therefore, necessarily a split between theholding of the en banc panel in this case and theSupreme Court of California, but the difference inreasoning provides a supplemental reason for grantingthe writ in this case.

B. The issues on which the circuits are split are ofsurpassing importance.

The issue upon which the circuits are split could notbe more important.

The 39th Congress proposed and the states ratifiedthe Fourteenth Amendment in order to provide auniform, federally-enforceable guarantee of politicalequality for the newly-freed slaves in every area exceptvoting, which was soon protected by the FifteenthAmendment. Under any circumstances, a significantsplit between the circuits over the scope of theFourteenth Amendment’s guarantee of politicalequality is inherently of fundamental importance to thenation.

But the split is of even greater importance herebecause it involves education, which is the “the bedrockof equal opportunity and ‘the very foundation of goodcitizenship,” Pet. App. 15a, citing Brown v. Bd. ofEduc., 347 U.S. 483, 493 (1954). The universities, in

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particular, are the “training ground for a large numberof our Nation’s leaders” and provide the first steps onthe “the path to leadership.” Pet. App. 15a, citingGrutter, 539 U.S. at 332. If it is vital, as Grutter held,to keep the path to leadership open to “qualifiedstudents of all races,” it is therefore vital that theprocedures made available to minority citizens be keptopen so that they can propose the plans that will makeit possible for their children to actually walk down thatpath to leadership.

If anything, the years since Grutter have confirmedthe importance to the nation of the programs at issuehere. As is even more apparent today, the nation as awhole will soon be majority-minority and already is soin many states and among the youth in many morestates. But these proposals have, as noted, cut theadmissions of black, Latina/o and Native Americanstudents to leading universities by one-third inMichigan and by up to one-half in California. Risingnumbers of minority citizens and falling numbers ofminority leaders are the route to disaster. The abilityto have fair and equal procedures to decide what can bedone is thus of exceptional national importance.

Four states beyond Michigan and California haveadopted identical amendments. The Attorney Generalattempts to create the false impression that there is agroundswell of support for such proposals. While thatis not true, it is true that if political leaders decide toallocate the money, they can persuade electorates inother states to adopt such proposals by the same type

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of racially-polarized vote that occurred in Michigan.This Court should thus decide the issue now before thenation is put through more of those divisive campaigns.

Finally, as important as the issue involved is to thenation, it is of life-altering importance for that part ofthe nation that is black, Latina/o, or Native American. As Grutter recognized—and the experience ofCalifornia and Michigan has now confirmed—manywell-qualified minority students can only gainadmission to leading universities if those universitieshave adopted a lawful affirmative action program. Quite simply, a split over whether a state may deny aracial minority the right to fight for the adoption ofprograms that will allow its youth to attend theuniversities is of surpassing importance.

By definition, a federal Amendment designed toprovide a national guarantee of political equality musthave the same meaning in Michigan as it does inCalifornia. If Proposal 2 is unconstitutional in highereducation, so, too, are Proposition 209 and the identicalproposals in Washington, Arizona, Oklahoma andNebraska. The Court should grant the writ becausethe whole country should have benefit of the rights nowprotected in the four states of the Sixth Circuit.

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II. THE COURT SHOULD GRANT THE WRITBECAUSE THE NINTH CIRCUIT HASDEPARTED FROM BINDING DECISIONSOF THIS COURT AND FROM THEFUNDAMENTAL COMMANDS OF THEFOURTEENTH AMENDMENT ITSELF.

In Hunter, this Court struck down an Akron, Ohiocharter amendment that selectively limited the powersof the City Council by requiring it to submit anyproposed fair-housing amendment to a referendum ofthe citizens. The Court struck down the amendmentbecause the state “…may no more disadvantage anyparticular group by making it more difficult to enactlegislation in its behalf than it may dilute any person’svote or give any group a smaller representation thananother of comparable size.” Hunter, 393 U.S. at 393.

In Seattle, this Court struck down a stateconstitutional amendment that allowed local schoolboards to use busing for any purpose except racialintegration. Again, the Court did so because theamendment required “those favoring the elimination ofde facto school segregation to seek relief from the statelegislature or from the statewide electorate,” while“authority over all other student assignment measures,as well as over most areas of educational policy,remains vested in the local school board.” Seattle, 458U.S. at 474.

As the Sixth Circuit held, Proposal 2 and identicalproposals elsewhere fall squarely within the holdingsof both Hunter and Seattle. The proposals selectivelyand drastically limit the otherwise plenary academicpowers of the governing boards in one area alone—the

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admission of minority students. The words quotedfrom Seattle in the preceding paragraph exactlydescribe what Proposal 2 and Proposition 209 havedone in higher education.

Both Hunter and Seattle recognized that theremight be an exception to the principles that theyannounced if a state demonstrated a compellinginterest in support of that exception. Hunter, 393 U.S.at 562 (Harlan, J., concurring); Seattle, 458 U.S. at 485n. 28. But neither Wilson nor the dissenters belowstated, attempted to state, or much less proved such acompelling interest. They sidestepped the entirerequirement simply by saying that “preferences” wereexempt based on a linguistic analysis of the words“equal” and “protection.”

At base, the Wilson opinion and that of thedissenters below rests on the notion that it is unfair forwell-qualified minority students to be admitted withlower grade point averages and scores than rejectedwhite applicants. But contrary to Brown v. Board andevery case that followed it, they did not test thatassumption against reality. Indeed, they took no noteat all of the racial bias captured, reflected, and oftenexaggerated by the criteria that the universities use.

Beyond their unverified notions of fairness, Wilsonand the dissenting judges below strain to find a legaljustification for their attempt to exempt advocacy forGrutter plans from the protection of Hunter andSeattle. They cite decisions by this Court that theconsideration of race in admissions is presumptivelyunlawful and must be subjected to strict scrutiny, butthey fail even to recognize that this Court has long held

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that those presumptions could be overcome by showinga compelling interest and that the plan in Grutter waslawful precisely because it fully met those tests.

Moreover, they offer no support—because there isnone—for their assertion that the presumption andstrict scrutiny standards that this Court has directedthe federal courts to use in determining which plansare constitutional can be converted into a license forstate action declaring that all such plans are alwaysillegal.

Hunter and Seattle held that the FourteenthAmendment did not allow the white majority to convertits beliefs, whether sincerely held or not, intoamendments that prevented racial minorities fromfighting through means available to all others forconstitutionally-valid measures to lessen racialexclusion and inequality. The majority in Akron mayhave sincerely believed that a property owner should beable to sell or rent as he chose—but it could not preventthe minority from fighting for fair housing laws to endits exclusion from specific neighborhoods. Similarly,the majority in Washington may have sincerelybelieved in neighborhood schools—but it could not banconsideration of busing programs to end minorities’exclusions from particular schools. Finally, themajority in Michigan may sincerely believe inadmissions based on grades and test scores—but itcannot ban racial minorities from the proceduresavailable to others when they ask the governing boardsto end their exclusion by departing from those criteria.

By keeping the channels of change open, Hunterand Seattle—and Romer v. Evans, 517 U.S. 620 (1996),

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which was based on analogous principles—madepossible great progress. And especially now, with morechanges coming, the nation should not retreat fromthose principles.

In the end, the sole difference between the property-rights and neighborhood-school justifications foundwanting in Hunter and in Seattle and the “color-blind”justification offered here is that the theory of the color-blind Constitution claims quasi constitutionaljustification because it is an “aspiration,” ParentsInvolved, 551 U.S. at 788 (Kennedy, J., concurring inthe judgment), and because a minority of Justicesbelieve that it should serve as a universal principletoday.

But in the strongest terms, this Court’s majorityhas repeatedly held that the theory of the color-blindConstitution cannot serve as a “universal constitutionalprinciple.” Id. Least of all can it serve as a universalprinciple for defining the scope of political equalityguaranteed by Hunter, Seattle and the FourteenthAmendment, or for establishing essentially immutablestandards for deciding who will have benefit of thetraining that makes possible so many opportunities.

The states have no right to declare that theFourteenth Amendment itself is color-blind simply byeliminating the political procedures by which citizenscan propose and officials can decide whether torecognize a compelling interest that justifies a Grutterplan. Especially in those states with small minoritypopulations, it is vital to extend federal protection forthe right of minority citizens to political equality inattempting to win approval for lawful programs that

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will make it possible for their children to go to thestate’s universities. They may not win thosefights—but the Fourteenth Amendment guaranteesthem the right to make those fights. The Court shouldgrant review to correct a fundamental error that theNinth Circuit has committed in denying thatprotection.

III. THE COURT SHOULD GRANT THE WRITBECAUSE MICHIGAN’S PROPOSAL 2 HASCREATED, FOR THE FIRST TIME INMANY DECADES, A LAW THATREGULATES AND LIMITS THEEDUCATIONAL OPPORTUNITIES OF ACLASS OF CITIZENS DEFINED BY THEIRRACE.

Wilson accepted as good coin Proposition 209’sprofessions of equality and, on that basis, peremptorilyrejected the claim that its substantive standardviolated the Equal Protection Clause:

Plaintiffs charge that this ban on unequaltreatment denies members of certain races andone gender equal protection of the laws. Ifmerely stating this alleged equal protectionviolation does not suffice to refute it, the centraltenet of the Equal Protection Clause teeters onthe brink of incoherence.

Wilson, 122 F.3d at 702

Yet the question is not so simple.

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In the first place, there is the question of how thecourt determines what is a “preference” or an“advantage.” There is absolutely no basis forconcluding the grade-test score baseline is a neutralstandard for determining what a “preference” is. Indeed, in effectively compelling the universities torigidly use that standard—with all its adverse effectson minority students—the amendment is actuallycompelling the university to perpetuate the effects ofracial inequality. And a law that mandates theperpetuation of de facto segregation either is or isperilously close to de jure segregation.

Second, the grade-test score standard is particularlyinappropriate for determining “preference” becausethere are so many exceptions to it. In Wilson, wherethe plaintiffs challenged all aspects of Proposition 209,they pressed the general point that the state grantednumerous exceptions to its standards and that grantingexceptions to some groups while denying them to racialminorities was a violation of the Equal ProtectionClause. Much later in its opinion, the Wilson panelacknowledged the force of this argument by recognizingthat the practice, if proved, was discriminatory:

If the state ever prohibited women andminorities from seeking preferences on a basisavailable to everyone else, such as age,disability, or veteran status, the state wouldviolate Proposition 209's prohibition against raceor gender discrimination.

Wilson, 122 F.3d at 708 n. 17

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But the concession directly contradicts Wilson’sconclusion that Proposition 209 did not violate theEqual Protection Clause, because allowing exceptionsfor everyone except racial minorities violates not onlyProposition 209, but, far more importantly, the EqualProtection Clause.

As is set forth above, in higher education, theuniversities routinely use plus factors to grantexceptions from their baseline criteria in order to admitthe children of alumni or of donors; applicants frompoor or rural backgrounds; veterans and athletes; andso on. Under Proposal 2 and Proposition 209, theuniversities may continue or expand any effort toachieve diversity—except diversity by race or gender.

Indeed, the public justifications offered for theseproposals demonstrate the double standard that theyactually incorporate. Michigan’s Attorney General, likeWard Connerly before him, asserts that admissionsshould be determined by “merit.” But their claim thatblack and Latina/o students lack “merit”—a claim thatappeals to the darkest sentiments—rests on theunproven assumption that grades and test scores arethe sole measures of merit. Even more egregiously, theProposals demand that “merit”—so defined—should beenforced only against minority and women applicants,who are the only applicants to whom the no-preferences standard even applies.

As Justice Jackson once said, there is “…no moreeffective practical guaranty against arbitrary andunreasonable government [action] than to require thatthe principles of law which officials would impose upona minority must be imposed generally.” Railway

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Express Agency, Inc. v. New York, 336 U.S. 106, 112-113 (1949)(Jackson, J., concurring). And since Proposal2 and Proposition 209 clearly do not do that, theyshould be struck down for their selective substantivestandards as well.

In fact, these proposals defy another of the originalpurposes of the Fourteenth Amendment. As the CivilWar ended, the South had passed laws that “…forbadeblacks from pursuing certain occupations orprofessions… and, in some states, even imposed specialtaxes on those newly-freed slaves who dared to takejobs outside farming and domestic service.” H. Hyman& W. Wiecek, Equal Justice Under Law 319 (1982);Eric Foner, Reconstruction, 199-201 Harper & Row(1988). Congress passed the Civil Rights Act of 1866to outlaw those statutes and then the Congressproposed and the states ratified the FourteenthAmendment in order to assure that the ban on suchspecial laws would “be forever incorporated in theConstitution of the United States.” Hurd v. Hodge, 334U.S. 24, 32-33 (1948).

“Forever” turned out to be three decades. Plessy v.Ferguson, 163 U.S. 537 (1896). In Justice Harlan’sgreat dissent, which was a last stand in defense of thepromises of Reconstruction, he rightly demanded“candor” in recognizing that the doctrine of separatebut equal was designed to subjugate black citizens andthat, in time, the decision in Plessy would be as“pernicious as the decision made by this tribunal in theDred Scott case.” Id., at 559.

If we speak with the candor that Justice Harlandemanded, the “no-preferences” amendments have as

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their overriding purpose regulating and limiting theadmission of black and Latina/o applicants to theUniversities of California and of Michigan. And theyhave succeeded in their aim: the admission of black,Latina/o and Native American students have fallen byone third or more and minority citizens have no way toreverse that terrible toll.

Indeed, at UCLA and elsewhere, the opponents ofminority admissions threaten legal action if theuniversity decides to review qualifications beyondgrades and test scores or takes any other steps thatmight open the doors to a few more minority students. David Leonhardt, “The New Affirmative Action,” NewYork Times, Sept. 30, 2007. They even threatened tosue when they learned the shocking fact thatadmissions officials had read an applicant’s essay inwhich she discussed her Latina heritage. TimGroseclose, “Report on Suspected Malfeasance inUCLA Admissions and the Accompanying Coverup,”a v a i l a b l e a t m a g e s . o c r e g i s t e r .com/newsimages/news/2008/08/CUARSGrosecloseResignationReport.pdf (last visited October 24, 2011).

The Black Codes imposed criminal penalties on thenewly-freed slaves who attempted to work as skilledlaborers or who attempted to leave agriculture ordomestic service. Proposition 209 and Proposal 2 workindirectly by imposing legal restrictions and the threatof legal actions against the universities. If theproposals have not barred all black, Latina/o andNative American students, they have put a cap on theadmissions of those students that no one has devised away to lift.

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The Sixth Circuit did not reach the questionwhether the substantive standards and the legalremedy created by Proposal 2 violated the EqualProtection Clause. But if the Attorney General asserts,as he does, that the state can deny political equality tominority residents, then it is vital that this Court alsoreview whether the state may impose the substantiverestrictions on minority admissions contained in thesetwo proposals.

CONCLUSION

For the reasons stated, the Coalition Respondentsask this Court to grant the writ of certiorari so thatthis Court may review the issues presented and extendthe rights protected by the en banc Sixth Circuitdecision to Arizona, California, Nebraska, Oklahoma,Washington and any other state that might adoptequivalent amendments.

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Respectfully submitted,

George B. Washington Counsel of recordShanta Driver Monica R. Smith Joyce P. Schon Ronald Cruz SCHEFF, WASHINGTON & DRIVER, P.C.645 Griswold, Suite 1817Detroit, Michigan 48226(313) 963-1921scheff@ameritech.net

Winifred KaoASIAN LAW CAUCUS55 Columbus AvenueSan Francisco, CA 94111(415) 896-1701 x 102(415) 896-1702 (fax)winifredk@asianlawcaucus.org

Counsel for RespondentsCoalition to Defend AffirmativeAction, et al.

Dated: February 4, 2013