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2013 Section 3: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview III. Civil Rights

In This Section:

New Case: 12-682 Schuette v. Coalition to Defend p. 95

Synopsis and Questions Presented p. 95

“SUPREME COURT TAKES NEW CASE ON AFFIRMATIVE ACTION, FROM p.120 ” Adam Liptak

“AFFIRMATIVE ACTION IN TEXAS AND MICHIGAN” p. 122 Stephen Wermiel

“U.S. COURT TAKES SMALL STEP TO BRIDGE IDEOLOGICAL DIVIDE” p. 125 Joan Biskupic

“6TH CIRCUIT: PROPOSAL 2 UNCONSTITUTIONAL” p. 127 Rayza Goldsmith

“SUPREME COURT IS URGED TO REJECT MICHIGAN AFFIRMATIVE ACTION p. 129 BAN” David Savage

“WHAT’S YOUR HURRY” p. 131 Linda Greenhouse

New Case: 12-872 Madigan v. Levin p. 134

Synopsis and Questions Presented p. 134

“U.S. SUPREME COURT TO CONSIDER APPLICATION OF ADEA TO STATE AND p. 147 LOCAL WORKERS” Jennifer Cerven

“SUPREME COURT TO TAKE ON AGE DISCRIMINATION: MADIGAN V. LEVIN” p. 149 Donald Scarinci

“HARVEY LEVIN V. LISA MADIGAN, SEVENTH CIRCUIT COURT OF APPEALS p. 151 DECISION” Edward Theobald

“HIGH COURT TO MULL CIRCUIT SPLIT ON GOV’T WORKER ADEA CLAIMS” p. 152 Bill Donahue

93 New Topic: Voting Rights after Shelby County p. 154

“SUPREME COURT STOPS USE OF KEY PART OF VOTING RIGHTS ACT” p.154 Robert Barnes

“U.S. CHIEF JUSTICE REALIZES LONGSTANDING VISION IN VOTING-RIGHTS p. 158 CASE” Joan Biskupic

“U.S. SUES TO BLOCK TEXAS LAW ON VOTER ID” p. 160 Jess Bravin

“U.S. ASKS COURT TO LIMIT TEXAS ON BALLOT RULES” p.162 Adam Liptak & Charlie Savage

94 Schuette v. Coalition to Defend Affirmative Action 12-682 Ruling Below: Coal. to Defend Affirmative Action v. Regents of the Univ. of Michigan, 701 F.3d 466 (6th Cir. 2012), cert. granted, 133 S.Ct. 1633.

In support of affirmative action efforts, organizations and individuals with ties to Michigan state universities filed suits against state officials and universities to seek declaratory judgments stating the constitutional amendment prohibiting affirmative action in public education, employment, and contracting violates the First and Fourteenth Amendments. After consolidation, the District Court for the Eastern District of Michigan entered summary judgment in state's favor, denied law student's motion to intervene, and denied plaintiffs' motion to alter or amend judgment.

Questions Presented: Whether a state violates the by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public- university admissions decisions.

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al., Plaintiffs–Appellants, v. REGENTS OF THE UNIVERSITY OF MICHIGAN, Board of Trustees of Michigan State University; Board of Governors of Wayne State University; Mary Sue Coleman; Irvin D. Reid; Lou Anna K. Simon, Defendants–Appellees

United States Court of Appeals for the Sixth Circuit

Decided: November 15, 2012.

[Excerpt; some footnotes and citations omitted]

COLE, Circuit Judge: lobby the admissions committee, she could petition the leadership of the university, she A student seeking to have her family’s could seek to influence the school’s alumni connections considered in her governing board, or, as a measure of last application to one of Michigan’s esteemed resort, she could initiate a statewide public universities could do one of four campaign to alter the state’s constitution. things to have the school adopt a legacy- The same cannot be said for a black student conscious admissions policy: she could seeking the adoption of a constitutionally

95 permissible race-conscious admissions Michigan’s November 2006 statewide ballot policy. That student could do only one thing a proposal to amend the Michigan to effect change: she could attempt to amend Constitution “to prohibit all sex- and race- the Michigan Constitution—a lengthy, based preferences in public education, expensive, and arduous process—to repeal public employment, and public the consequences of Proposal 2. The contracting....” The initiative—officially existence of such a comparative structural designated Proposal 06–2 but commonly burden undermines the Equal Protection known as “Proposal 2”—sought “to amend Clause’s guarantee that all citizens ought to the State Constitution to ban affirmative have equal access to the tools of political action programs.” Though Proposal 2 change. We therefore REVERSE the “found its way on the ballot through judgment of the district court on this issue methods that undermine[d] the integrity and and find Proposal 2 unconstitutional. We fairness of our democratic processes,” once AFFIRM the denial of the University there, it garnered enough support among Defendants’ motion to be dismissed as Michigan voters to pass by a margin of 58% parties, and we AFFIRM the grant of the to 42%... Cantrell Plaintiffs’ motion for summary judgment as to Russell. Proposal 2 took effect in December 2006 and wrought two significant changes to the I. admissions policies at Michigan’s public A. Factual Background colleges and universities. First, it eliminated the consideration of “race, sex, color, [Affirmative action] challenges in the late ethnicity, or national origin” in 1990s culminated in the Supreme Court’s individualized admissions decisions, decisions in Gratz v. Bollinger, and Grutter modifying policies in place for nearly a half- v. Bollinger, which held that “universities century. No other admissions criterion—for cannot establish quotas for members of example, grades, athletic ability, geographic certain racial groups” or treat their diversity, or family alumni connections— applications uniquely. But the Court suffered the same fate. Second, Proposal 2 allowed universities to continue entrenched this prohibition at the state “consider[ing] race or ethnicity more constitutional level, thus preventing public flexibly as a ‘plus’ factor in the context of colleges and universities or their boards individualized consideration,” along with from revisiting this issue—and only this other relevant factors, a holding we do not issue—without repeal or modification of today address or upset. article I, section 26 of the Michigan Constitution. Following these decisions, , a former University of Regent B. Procedural History who had championed a similar proposition in California, and Jennifer Gratz, the lead On November 8, 2006, the day after plaintiff in Gratz, mobilized to place on Proposal 2 passed, a collection of interest

96 groups and individuals, including the postponing the application of Proposal 2 to Coalition to Defend Affirmative Action, the universities’ admissions and financial- Integration and Immigration Rights and aid policies until July 1, 2007, which was Fight for Equality By Any Means Necessary the conclusion of the 2006–2007 admissions (“Coalition Plaintiffs”), filed suit in the and financial-aid cycle. The district court’s United States District Court for the Eastern order stemmed from a stipulation among the District of Michigan. They named as University Defendants, Coalition Plaintiffs, defendants then-Governor Jennifer Granholm, and the Attorney General Granholm, the Regents of the University of consenting to the injunction. While awaiting Michigan, the Board of Trustees of approval as intervenors, Russell and TAFM Michigan State University, and the Board of opposed the Attorney General’s stipulation Governors of Wayne State University and sought a stay of the injunction from the (“University Defendants”), and alleged that district court. When two days passed the provisions of Proposal 2 affecting public without a ruling on their motions, Russell colleges and universities violated the United and TAFM filed with us an “Emergency States Constitution and federal statutory law. Motion for a Stay Pending Appeal,” which The Coalition Plaintiffs limited their request we granted. Meanwhile, we approved the for relief to Proposal 2 as it applies to public district court’s decision to allow only education, and did not challenge its Russell to intervene in the Proposal 2 constitutionality as it applies to public litigation. employment or public contracting. About a month later, the Michigan Attorney General On October 5, 2007, the Cantrell Plaintiffs (“Attorney General”) filed a motion to filed a motion for summary judgment as to intervene as a defendant, which the district Russell, arguing that he should be dismissed court granted. Shortly thereafter, Eric from the litigation because he no longer Russell, then an applicant to the University represented an interest distinct from that of of Michigan Law School, and Toward A the Attorney General. On October 17, 2007, Fair Michigan (“TAFM”), a non-profit the University Defendants filed a motion to corporation formed to ensure dismiss on the ground that they were not implementation of Proposal 2, also filed a necessary parties to the litigation. On motion to intervene in the litigation. November 30, 2007, the Attorney General filed a motion to dismiss for lack of standing On December 19, 2006, a group of faculty or, in the alternative, a motion for summary members and prospective and current judgment on the merits as to all Plaintiffs. students at the University of Michigan Russell and the Cantrell Plaintiffs likewise (“Cantrell Plaintiffs”) filed a separate but filed motions for summary judgment the similar suit … same day.

That same day, the district court issued what On March 18, 2008, the district court issued was, in effect, a preliminary injunction, two orders addressing these motions. First,

97 the court denied the University Defendants’ “political process” argument), and the request to be dismissed as parties and the Coalition Plaintiffs additionally argue that Cantrell Plaintiffs’ motion for summary Proposal 2 violates the Equal Protection judgment. The court also granted the Clause by impermissibly classifying Attorney General’s motion for summary individuals on the basis of race (the judgment, rejecting the Plaintiffs’ arguments “traditional” argument). that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment. In addressing the Plaintiffs’ arguments, we Second, the court granted the Cantrell are neither required nor inclined to weigh in Plaintiffs’ motion for summary judgment, on the constitutional status or relative merits dismissing Russell as an intervenor. The of race-conscious admissions policies as Cantrell Plaintiffs subsequently moved the such… court to reconsider the first order, but the court denied the motion. We review de novo a district court’s grant of summary judgment and denial of a motion The Plaintiffs, the University Defendants, for reconsideration of that decision. and Russell appealed these orders to this Whether a state’s constitution violates the Court. A panel of this Court reversed the federal constitution is a question of law, district court’s grant of summary judgment which we also review de novo. in favor of the Attorney General, concluding that the portions of Proposal 2 that affect 1. Equal Protection Within the Political Michigan’s public institutions of higher Process education impermissibly alter the political The Equal Protection Clause “guarantees process in violation of the Equal Protection racial minorities the right to full Clause. This Court also affirmed the district participation in the political life of the court’s dismissal of Russell and the denial of community. It is beyond dispute ... that the University Defendants’ motion to be given racial or ethnic groups may not be dismissed. The Attorney General then denied the franchise, or precluded from sought en banc review, which we granted, entering into the political process in a vacating the panel opinion. reliable and meaningful manner.”

Washington v. Seattle Sch. Dist. No. 1, 458

U.S. 457, 467 (1982). But the Equal II. Protection Clause reaches even further, A. Constitutionality of Proposal 2 prohibiting “a political structure that treats The Plaintiffs argue that Proposal 2 violates all individuals as equals, yet more subtly [the Equal Protection Clause] in two distinct distorts governmental processes in such a ways. Both Plaintiff groups argue that way as to place special burdens on the Proposal 2 violates the Equal Protection ability of minority groups to achieve Clause by impermissibly restructuring the beneficial legislation.” “[T]he State may no political process along racial lines (the more disadvantage any particular group by

98 making it more difficult to enact legislation indefinitely. in its behalf than it may dilute any person’s vote or give any group a smaller a. Hunter v. Erickson representation than another of comparable size.” Hunter v. Erickson, 393 U.S. 385, 393 In Hunter, the citizens of Akron, Ohio, (1969). overturned a fair housing ordinance enacted by the City Council. [T]he citizens amended The Supreme Court’s statements in Hunter the city charter through a referendum to and Seattle emphasize that equal protection require the approval of an electoral majority of the laws is more than a guarantee of equal before any ordinance regulating real estate treatment under existing law…. Ensuring the “on the basis of race, color, religion, fairness of the political process is national origin or ancestry”—past or particularly important because an electoral future—could take effect. In other words, minority is disadvantaged by definition in its only ordinances based on those factors attempts to pass legislation; this is especially required a city-wide majority; ordinances true of “discrete and insular minorities,” based on any other factor required just a who face unique additional hurdles. vote by the City Council…

The referendum halted operation of the Ensuring a fair political process is nowhere existing fair housing ordinance, and more more important than in education. Education importantly for our purposes, erected a is the bedrock of equal opportunity and “the barrier to any similar ordinance in the future. very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). The Supreme Court found that the disparity Safeguarding the guarantee “that public between the process for enacting a future institutions are open and available to all fair housing ordinance and the process for segments of American society, including enacting any other housing ordinance people of all races and ethnicities, represents “place[d] special burden[s] on racial a paramount government objective.” minorities within the governmental process” …Therefore, in the high-stakes context of by making it “substantially more difficult to education, we must apply the political- secure enactment” of legislation that would process doctrine with the utmost rigor. be to their benefit.…

Of course, the Constitution does not protect minorities from political defeat… We must b. v. Seattle School District therefore have some way to differentiate No. 1 between the constitutional and the In Seattle, a case that mirrors the one before impermissible. And Hunter and Seattle us, the Supreme Court applied Hunter to provide just that. They set the benchmark for strike down a state statute, also enacted via a when the majority has not only won, but has referendum, that prohibited racially rigged the game to reproduce its success integrative busing. Seattle, 458 U.S. at 463.

99 Prior to the referendum, Seattle School Echoing Hunter, the Court explained that District No. 1 (“District”) had implemented this distinct analysis is necessary because a school desegregation plan that made non-neutral allocations of power “place [ ] extensive use of mandatory reassignments… special burdens on racial minorities within [T]he school board implemented the plan to the governmental process, thereby making it accelerate its existing program of voluntary more difficult for certain racial and religious busing, which some constituencies saw as minorities than for other members of the insufficiently alleviating racial imbalances. community to achieve legislation that is in their interest… In response, Seattle residents drafted a statewide measure—known as Initiative In sum, Hunter and Seattle require us to 350—providing in relevant part that “no examine an enactment that changes the school board ... shall directly or indirectly governmental decisionmaking process for require any student to attend a school other legislation with a racial focus to determine if than the school which is geographically it improperly manipulates the channels for nearest or next nearest the student’s place of change. To the extent that it does, we must residence....” Though the initiative was strike down the enactment absent a framed as a general ban on mandatory compelling state interest. busing, its myriad exceptions made its real effect the elimination of school 2. Application of the Hunter/Seattle Test to reassignments for racial purposes only, Proposal 2 except where a court ordered such reassignments to remedy unconstitutional Hunter and Seattle thus expounded the rule segregation. Initiative 350 made it on the that an enactment deprives minority groups Washington ballot and passed by a of the equal protection of the laws when it: substantial margin. (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit The Court found that Initiative 350, like the of the minority”; and (2) reallocates political Akron city charter amendment, violated the power or reorders the decisionmaking Equal Protection Clause. The Court stated process in a way that places special burdens that its prior cases yielded a “simple but on a minority group’s ability to achieve its central principle”: while “laws structuring goals through that process. See Seattle, 458 political institutions or allocating political U.S. at 467, 472, 102 S.Ct. 3187; Hunter, power according to neutral principles” do 393 U.S. at 391, 89 S.Ct. 557. Applying this not violate the Fourteenth Amendment, “a rule here, we conclude that Proposal 2 different analysis is required when the State targets a program that “inures primarily to allocates governmental power nonneutrally, the benefit of the minority” and reorders the by explicitly using the racial nature of a political process in Michigan in a way that decision to determine the decisionmaking places special burdens on racial minorities. process.” Seattle, 458 U.S. at 469–70.

100 a. Racial Focus enhancing their educational opportunities and promoting classroom diversity… The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 Seattle not only mandates our conclusion has a “racial focus.” This inquiry turns on that Proposal 2 is racially focused, but it also whether the targeted policy or program, here dispels any notion that the benefit race- holistic race-conscious admissions policies conscious admissions policies may confer at public colleges and universities, “at on the majority undercuts its “racial focus.” bottom inures primarily to the benefit of the Although it is true that increased minority, and is designed for that representation of racial minorities in higher purpose.”… education benefits all students, the Supreme Court has made clear that these policies still Seattle conclusively answers whether a law have a racial focus. targeting policies that seek to facilitate … classroom diversity, as Proposal 2 does, has a racial focus. In Seattle, the Court observed We find that the holistic race-conscious that programs intended to promote school admissions policies now barred by Proposal diversity and further the education of 2 inure primarily to the benefit of racial minority children enable these students to minorities, and that such groups consider “achieve their full measure of success.”… these policies to be in their interest. Indeed, Accordingly, the Court noted that we need not look further than the approved “desegregation of the public schools ... at ballot language—characterizing Proposal 2 bottom inures primarily to the benefit of the as an amendment “to ban affirmative action minority....” Because minorities could programs”—to confirm that this legislation “consider busing for integration to be targets race-conscious admissions policies ‘legislation that is in their interest,’ ” the and, insofar as it prohibits consideration of Court concluded that Initiative 350’s applicants’ race in admissions decisions, that effective repeal of such programs had a it has a racial focus. racial focus sufficient to “trigger application of the Hunter doctrine.” b. A Reordering of the Political Process That Burdens Racial Minorities The logic of the Court’s decision in Seattle applies with equal force here. Proposal 2 The second prong of the Hunter/Seattle test targets race-conscious admissions policies asks us to determine whether Proposal 2 that “promote [ ] ‘cross-racial reallocates political power or reorders the understanding,’ help[ ] to break down racial political process in a way that places special stereotypes, and ‘enable[ ] students to better burdens on racial minorities. We must first understand persons of different races.’ ”… resolve (1) whether the affected admissions There is no material difference between the procedures lie within the “political process,” enactment in Seattle and Proposal 2, as both and then (2) whether Proposal 2 works a targeted policies that benefit minorities by “reordering” of this political process in a

101 way that imposes “special burdens” on racial government of the university. Exercising minorities. this power, the boards have enacted bylaws—which they have complete i. Proposal 2’s Effect on a “Political authority to revise or revoke—detailing Process” admissions procedures.

The breadth of Proposal 2’s influence on a The University of Michigan’s bylaws “political process” turns on the role the delegate the day-to-day management of popularly elected governing boards of the undergraduate admissions to the associate universities play in setting admissions vice provost and executive director of procedures. The key question is whether the undergraduate admissions. Although the boards had the power to alter the board delegates this responsibility, it universities’ admissions policies prior to the continues to exercise ultimate enactment of Proposal 2. If the boards had decisionmaking authority because it directly that power and could influence the use (or appoints the associate vice provost and non-use) of race-conscious admissions executive director of undergraduate policies, then Proposal 2’s stripping of that admissions, and because it retains the power power works a reordering of the political to revoke or alter the admissions framework. process because minorities can no longer Nothing prevents the board from adopting seek to enact a type of legislation that is in an entirely new framework for admissions their interest at the board level. But if board decisions if it is so inclined… members lacked such power, because policy decisions are actually under the control of [T]he board fulfills its general supervisory politically unaccountable faculty members role by conducting monthly public meetings or admissions committees, then Proposal 2’s to remain apprised of all university effect on the political process is negligible… operations and by exercising its power to

amend bylaws or revise delegations of The Michigan Constitution establishes three responsibility. At these meetings, the board public universities—the University of regularly discusses admissions practices, Michigan, Michigan State University, and including the use of race-conscious Wayne State University—and grants control admissions policies. Thus, the elected of each to a governing board. These boards boards of Michigan’s public universities have the same role: to run, with plenary can, and do, change their respective authority, their respective institutions. admissions policies, making the policies Michigan law has consistently confirmed themselves part of the political process. But this absolute authority… even if they did not, the Attorney General

provides no authority to support his Eight popularly elected individuals sit on contention that an unused power is a power these boards, and they hold office for eight abandoned. years. The boards have the “power to enact ordinances, by-laws and regulations for the

102 Nevertheless, the Attorney General argues, more explicit direction to admissions echoed by the dissenters, that admissions committees. Thus, Proposal 2 affects a decisions lie outside the political process “political process.” because the governing boards of the universities have “fully delegated” ii. Reordering of a “Political Process” responsibility for establishing admissions The next issue is whether Proposal 2 standards to politically unaccountable reordered the political process in a way that admissions committees and faculty places special burdens on racial minorities. members. But the Michigan Constitution, The Supreme Court has found that both state statutes, and the universities’ bylaws implicit and explicit reordering violates the and current practices directly contradict this Fourteenth Amendment… argument…

The comparative structural burden we face Moreover, to the extent the Attorney here is every bit as troubling as those in General and the dissenters express concern Hunter and Seattle because Proposal 2 over the degree to which the board has creates the highest possible hurdle. This delegated admissions decisions, that comparative structural burden is most delegation does not affect whether apparent in tracing the channels for change admissions decisions should be considered available to a citizen promoting any policy part of the political process… unmodified by Proposal 2 and those

available to a citizen promoting Telling evidence that board members can constitutionally permissible race-conscious influence admissions policies—bringing admissions policies. such policies within the political process—is that these policies can, and do, shape the An interested Michigan citizen may use any campaigns of candidates seeking election to number of avenues to change the admissions one of the boards. As the boards are policies on an issue outside the scope of popularly elected, citizens concerned with Proposal 2… race-conscious admissions policies may lobby for candidates who will act in Because Proposal 2 entrenched the ban on accordance with their views—whatever they all race-conscious admissions policies at the are. Board candidates have, and certainly highest level, this last resort—the campaign will continue, to include their views on race- for a constitutional amendment—is the sole conscious admissions policies in their recourse available to a Michigan citizen platforms… Once elected, the new slate may who supports enacting such policies… Just revise the bylaws, and change their to place a proposed constitutional university’s admissions policies—either by amendment repealing Proposal 2 on the entirely revoking the delegation and ballot would require either the support of handling all admissions policies at the board two-thirds of both the Michigan House of level or by enacting new bylaws giving Representatives and Senate, or the

103 signatures of a number of voters equivalent to surmount more formidable obstacles than to at least ten percent of the number of votes those faced by other groups to achieve their cast for all candidates for governor in the political objectives… As the Supreme Court preceding general election. Once on the has recognized, such special procedural ballot, the proposed amendment must then barriers to minority interests discriminate earn the support of a majority of the voting against racial minorities just as surely as— electorate to undo Proposal 2’s categorical and more insidiously than—substantive ban. legal barriers challenged under the traditional equal protection rubric. Because Only after traversing this difficult and costly less onerous avenues to effect political road would [a] citizen reach the starting change remain open to those advocating point of his neighbor who sought a legacy- consideration of nonracial factors in related admissions policy change. After [a] admissions decisions, Michigan cannot force successful constitutional amendment those advocating for consideration of racial campaign, [a] citizen could finally approach factors to traverse a more arduous road the university—by petitioning the without violating the Fourteenth admissions committees or higher Amendment. We thus conclude that administrative authorities—to request the Proposal 2 reorders the political process in adoption of race-conscious admissions Michigan to place special burdens on policies. By amending the Michigan minority interests. Constitution to prohibit university admissions units from using even modest 3. Objections to the Applicability of the race-conscious admissions policies, Proposal Hunter/Seattle Doctrine to Proposal 2 2 thus removed the authority to institute any The Attorney General and the dissenters such policy from Michigan’s universities make a number of arguments as to why and lodged it at the most remote level of Proposal 2 survives constitutional scrutiny. Michigan’s government, the state At the outset, it should be noted that constitution. As with the unconstitutional adopting these arguments as to Proposal 2’s enactment in Hunter, proponents of race- constitutionality would be particularly conscious admissions policies now have to ironic, given that these arguments applied obtain the approval of the Michigan with equal force to Initiative 350 in Seattle. electorate and, if successful, admissions While distinctions obviously exist between units or other university powers—whereas the policy at issue here and that in Seattle, proponents of other non-universal the factual differences are not so material as admissions factors need only garner the to justify departure from relevant Supreme support of the latter. Court precedent.

The “simple but central principle” of Hunter a. Hunter/Seattle Doctrine and and Seattle is that the Equal Protection Preferential Treatment Programs Clause prohibits requiring racial minorities The Attorney General and the dissenters

104 assert that Hunter and Seattle are their objectives over which other groups do inapplicable to Proposal 2 because those not have to leap. If they are, the disparate cases only govern enactments that burden procedural treatment violates the Equal racial minorities’ ability to obtain protection Protection Clause, regardless of the from discrimination through the political objective sought. process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential b. Proposal 2 as a Mere Repeal treatment. At bottom, this is an argument Latching on to the Supreme Court’s that an enactment violates the Equal observation that “the simple repeal or Protection Clause under Hunter and Seattle modification of desegregation or only if the political process is distorted to antidiscrimination laws, without more, never burden legislation providing has been viewed as embodying a constitutionally-mandated protections, such presumptively invalid racial classification,” as anti-discrimination laws. Under this Crawford v. Bd. of Educ., 458 U.S. 527, 539 theory, a state may require racial minorities (1982), the Attorney General implores us to to endure a more burdensome process than classify Proposal 2 as a mere repeal of the all other citizens when seeking to enact universities’ race-conscious admissions policies that are in their favor if those policies, rather than the kind of political policies are constitutionally permissible but restructuring that implicates the not constitutionally required. This effort to Hunter/Seattle doctrine. Crawford, a case drive a wedge between the political-process decided the same day as Seattle, emphasizes rights afforded when seeking the difference between mere repeals and antidiscrimination legislation and so-called political restructuring; state actors must preferential treatment is fundamentally at retain the power to repeal policies without odds with Seattle. running afoul of the political-process

doctrine—certainly not every policy The only way to find the Hunter/Seattle elimination carries with it a political-process doctrine inapplicable to the enactment of violation. Crawford brings this difference preferential treatment is to adopt a strained into focus, because the Court-approved reading that ignores the preferential nature political action in that case (amendment of of the legislation at issue in Seattle, and the California Constitution) occurred at the inaccurately recast it as anti-discrimination same level of government as the original legislation… enactment (a prior amendment of the

California Constitution), thus leaving the The distinction urged by the Attorney rules of the political game unchanged. General and the dissenters [] erroneously imposes an outcome-based limitation on a The Supreme Court has twice distinguished process-based right. What matters is the “mere repeal” at issue in Crawford from whether racial minorities are forced to the political reordering at issue in Hunter surmount procedural hurdles in reaching and Seattle. The Crawford Court

105 distinguished Hunter by clarifying that the eliminate; and courts must decide equal charter amendment in Hunter was protection challenges by application of “something more than a mere repeal” precedent, rather than resort to syllogism. because it not only repealed an ordinance Most importantly, our holding does not adopted by the popularly elected City place race-conscious admissions policies Council, it removed from the Council the beyond the political process. Opponents of power to reinstate it—more than just affirmative action remain free to advocate undoing an unpopular act, the electorate in for their preferred policies in the same Hunter had altered the framework of the manner and at the same level of government political process. The Seattle Court drew the as its proponents. same distinction between the Washington State legislation and the California 4. Constitutionality of Proposal 2 Under amendment… the Political–Process Doctrine

Proposal 2 modifies Michigan’s political Here, the rules are not the same after process “to place special burdens on the Proposal 2. Rather than undoing an act of ability of minority groups to achieve popularly elected officials by simply beneficial legislation.” Because Proposal 2 repealing the policies they created, Michigan fails the Hunter/ Seattle test, it must survive voters repealed the admissions policies that strict scrutiny. Under the strict scrutiny university officials created and took the standard, the Attorney General must prove additional step of permanently removing the that Proposal 2 is “necessary to further a officials’ power to reinstate them. In short, compelling state interest.” In Seattle, the Proposal 2 “works something more than the Court did not consider whether a compelling ‘mere repeal’ of a desegregation law by the state interest might justify a state’s political entity that created it.”… enactment of a racially-focused law that

restructures the political process, because More generally, the dissenting opinions the government made no such argument. criticize our holding today in broad and Likewise, because the Attorney General strident terms. At their core, these opinions does not assert that Proposal 2 satisfies a express disapproval of the political-process compelling state interest, we need not doctrine itself, dissatisfaction that Grutter consider this argument. Therefore, those allowed for even modest race-conscious portions of Proposal 2 that affect Michigan’s admissions policies, and incredulity at the public institutions of higher education possibility that a state constitutional violate the Equal Protection Clause. amendment forbidding consideration of race could violate the Equal Protection Clause. 5. Traditional Equal Protection Analysis But Hunter and Seattle have not been overruled; Grutter continues to permit the Having found that Proposal 2 deprives the same holistic race-conscious admissions Plaintiffs of equal protection of the law policies Proposal 2 seeks to permanently under the political-process doctrine, we need not reach the question of whether it also

106 violates the Equal Protection Clause when party was not appropriate. assessed using the “traditional” analysis. The discretionary language of Rule 21, B. The University Defendants’ Non– coupled with our deferential standard of Dismissal review, presents a high hurdle for reversal of the district court’s determinations. The The University Defendants appeal the Coalition Plaintiffs asserted a right to relief district court’s denial of their motion to be against the University Defendants, and so dismissed as misjoined parties under Rule we are not “left with a definite and firm 21 of the Federal Rules of Civil Procedure. conviction that the trial court committed a We review the district court’s decision for clear error of judgment,” and affirm the an abuse of discretion and must affirm district court’s denial of the University unless we are “left with a definite and firm Defendants’ motion. conviction that the trial court committed a clear error of judgment.” C. Dismissal of Russell as an Intervenor

…Because a motion to be dismissed under Intervening Defendant Russell appeals the Rule 21 tracks Rule 20(a), we must ask district court’s decision granting the Cantrell whether the Coalition Plaintiffs have Plaintiffs’ motion for summary judgment to satisfied the rules for permissive joinder… dismiss him from the case because he no longer satisfied the requirements for The district court concluded that the intervention. We review de novo a district University Defendants were properly joined court’s grant of summary judgment… parties under Rule 20(a) because the Coalition Plaintiffs asserted a request for Under Federal Rule of Civil Procedure relief on a claim involving common issues 24(a), an interested party must meet four of law and fact. The district court found that requirements before being permitted to “the claims brought against the universities intervene as of right: (1) his motion to are intertwined with those challenging intervene must be timely; (2) he must have a Proposal 2,” and “[i]f [the court] were to substantial legal interest in the subject find Proposal 2 unconstitutional, affirmative matter of the case; (3) he must demonstrate action would not automatically be reinstated that his interest will be impaired in the into the admissions process. Rather, the absence of intervention; and (4) he must universities would have to choose to do so demonstrate that the parties already before on their own.” Because the Coalition the court do not adequately represent his Plaintiffs’ traditional equal protection claim interest. An intervenor also must continue could have required the University to meet these requirements throughout the Defendants to grant relief by reinstating duration of the litigation, as courts must be race-conscious admissions policies, the able to ensure that parties have a live interest district court found Rule 20(a) satisfied and in the case. concluded that dismissal as a misjoined

107 Although Russell met all four requirements and subordinate state authorities began to when he was permitted to intervene, it has implement policies of become apparent during the course of in decisions on, inter alia, educational litigation that Russell can no longer admissions. The Supreme Court of the demonstrate that the parties already before United States held that such actions were the court do not adequately represent his permissible, but certainly not that they were interests… Russell’s intervention in this compelled. Subsequently, the ultimate state litigation is no longer proper and we affirm political authority, the People of Michigan, the district court’s grant of the Cantrell voted to establish the same principle that Plaintiffs’ motion for summary judgment to Massachusetts did in 1855… dismiss him. The majority of the en banc court now holds III. that this action of the People of Michigan was unconstitutional, relying on an extreme Finding those provisions of Proposal 2 extension of two United States Supreme affecting Michigan’s public colleges and Court cases ruling on very different universities unconstitutional, we REVERSE circumstances. the district court’s judgment granting the

Defendants–Appellees’ motion for summary To begin with, those two cases each judgment. We further AFFIRM the district involved a single action that transferred, for court’s denial of the University Defendants’ the first time, decision making on a single motion to be dismissed as parties, and matter, a transfer held to be wholly aimed at AFFIRM the district court’s grant of the one disadvantaged race. In one instance, Cantrell Plaintiffs’ motion for summary approval of new anti-discrimination judgment as to Russell. ordinances was moved from the city council to the voters of the city of Akron, and in the DANNY J. BOGGS, Circuit Judge, other case, power over certain pupil dissenting. assignment policies was moved from the citizens of one city in the state of In 1848, the relevant local authority, the Washington to the citizens of the entire Boston School Board, decided that race state. should be used in making assignments in the Boston public schools. They excluded and In our case, however, we have the citizens of segregated black students. However, in 1855 the entire state establishing a principle that the ultimate political authority, the would in general have seemed laudable. legislature of Massachusetts, established the Even plaintiffs here do not allege, in the general principle against racial context of their political-process argument, discrimination in educational choices. The that if this constitutional provision had been legislature was lauded for that choice. enacted at some earlier time in Michigan, for example upon its entry into the union, or Over 100 years later, various Michigan local

108 upon the enactment of its new constitution discrimination may be practiced in favor of in 1963, that it would have been certain racially or ethnically defined unconstitutional. They instead contend that minorities, primarily African–Americans (or because of current circumstances, and perhaps those deemed to be “black,” intervening political decisions of racial whether or not actually “American”) or discrimination, these Supreme Court cases “Hispanics” (although there was some make the principled action of the People of evidence that some groups generally defined Michigan unconstitutional. as “Hispanic” (especially Cuban) might be discriminated against rather than in favor of. Indeed, the majority seems to concede that On the other hand, various groups, some set of decision makers in Michigan sometimes defined as racial minorities, may would be able to reverse the policies that be discriminated against. they claim are immune from actions by the entire body politic. Rather, they demand that Under these circumstances, holding it to be a any changes in the educational (and perhaps violation of equal protection for the ultimate employment) policies here can be enacted political authority to declare a uniform only by individual actions of each of the policy of non-discrimination is vastly far university governing authorities (three of afield from the Supreme Court precedents… which are chosen by statewide election over eight years), each regional state university I cannot agree that this decision is correct, (whose governing boards are appointed on a either as a matter of general constitutional staggered basis by the governor over eight law or as an accurate interpretation of the years), and each local educational authority Supreme Court precedents. I therefore for community and technical schools (whose respectfully DISSENT. governing authorities are chosen by a variety of methods by each individual county and JULIA SMITH GIBBONS, Circuit locality)… Judge, dissenting.

In addition, the situation in Michigan, in Proposal 2 is not unconstitutional under which the various local authorities are either a political restructuring theory or permitted (under Grutter) to engage in under traditional equal protection analysis. I varieties of racial discrimination, both for therefore respectfully dissent. and against variously defined groups, is wholly at odds with the single-instance I. restructuring of government involved in the Supreme Court precedents relied on by the Elementary principles of constitutional law majority. tell us that plaintiffs’ challenge to Proposal 2 should have little to no chance of success. Here, it was clear from the evidence in the Plaintiffs argue that Michigan must retain its Grutter case, and in the record in this case, racial and other preference policies in higher education and that the state’s voters cannot

109 make the contrary policy choice that factors the majority relies does not invalidate like race and gender may not be taken into Proposal 2… account in admissions. They make this argument in the face of the core equal In holding that student-body diversity is a protection principle of nondiscrimination—a compelling state interest that can justify the principle consistent with the choice of the narrowly tailored use of race in university people of Michigan. They make the admissions policies, Grutter set forth three argument despite the absence of any principles about race-based admissions precedent suggesting that states must policies that bear repeating here. First, employ racial preferences in university Grutter reminded us that “ ‘[a] core purpose admissions. Essentially, the argument is one of the Fourteenth Amendment was to do of constitutional protection for racial and away with all governmentally imposed gender preference—a concept at odds with discrimination based on race’ ” and that, as a the basic meaning of the Equal Protection consequence, “race-conscious admissions Clause, as understood and explained through policies must be limited in time.” This decades of jurisprudence. principle makes sense because all “racial classifications are presumptively invalid....” Although it has convinced a majority of this Second, Grutter indicated that the decision court, plaintiffs’ argument must be to end race-conscious admissions policies is understood for the marked departure it primarily one to be made by states and their represents—for the first time, the public universities, not courts. And third, presumptively invalid policy of racial and while racially conscious admissions policies gender preference has been judicially are permitted, they are not constitutionally entrenched as beyond the political process. required. In reaching its conclusion, the majority strays from analysis bounded by familiar A. principles of constitutional law and loses With these core principles in mind we sight of the parameters within which we examine the applicability of Hunter and should operate in deciding this case. To be Seattle to the passage of Proposal 2 in accurate in characterizing the majority’s Michigan… approach, it relies on two Supreme Court cases, which it deems highly instructive. Because Hunter considered only the Yet, when examined carefully, these cases political-process implications of repealing a have no application here, and, in law that required equal treatment, it cannot emphasizing them, the majority overlooks be read broadly to apply to the repeal of a recent case law providing more relevant law requiring preferential treatment. As we guidance. have observed, “[t]hese are fundamentally different concepts.” Thus, Hunter does not II. guide us here. The political restructuring theory on which

110 Nor does Washington v. Seattle Sch. Dist. same structural protections against statewide No. 1, suggest application of the political popular repeal as other laws that inure to the restructuring doctrine to Proposal 2… interest of minorities, the majority walks Accordingly, Proposal 2 is quite unlike the alone. The two highest courts to have narrow anti-busing measure struck down in considered the question have concluded that Seattle; it represents “a sea change in state the political restructuring doctrine of Hunter policy, of a kind not present in Seattle or any and Seattle does not prevent the statewide other ‘political structure’ case.” popular elimination of race-based classification policies. … The majority is quick to conclude that Proposal 2 and Initiative 350 each target [E]qual treatment is the baseline rule policies—affirmative action and integrative embodied in the Equal Protection Clause, busing, respectively—that “inure[ ] from which racial-preference programs are a primarily to the benefit of the minority” and departure. These programs—fundamentally therefore each has a “racial focus.” But in a different from the underlying policies in political-restructuring challenge, it is not Hunter and Seattle—cannot receive special enough to observe that some of the policies sanctuary from a decision of the majority of affected by the challenged enactment voters to return their law to the equal primarily benefit minorities. Nor is it protection norm of equal treatment. enough to observe that, as here, the challenged enactment was passed in III. response to a high-profile case permitting There is another reason that Hunter and racially conscious admissions policies under Seattle cannot forbid the amendment of the some circumstances. Though relevant, these Michigan Constitution through the passage observations are alone insufficient: in a of Proposal 2. In both cases the relevant political restructuring case, it is imperative lawmaking authority was reallocated from a to consider the scope of the challenged local legislative body to the “more complex enactment itself. The majority fails to government structure,” of the city- or state- account for the broad substantive reach of wide general electorate, thereby placing a Proposal 2 when compared to the narrow “comparative structural burden ... on the focus of Initiative 350 and, in so doing, political achievement of minority improperly stretches the political interests.”… As the record here restructuring doctrine that Seattle articulates demonstrates, the people of Michigan have to the instant case… not restructured the state’s lawmaking process in the manner prohibited by Hunter B. and Seattle. Instead, their vote removed admissions policy from the hands of In concluding that a race-based decisionmakers who were unelected and classification that is presumptively invalid, unaccountable to either minority or majority but permissible under limited circumstances interests and placed it squarely in an and for a finite period of time, receives the

111 electoral process in which all voters, both minority and majority, have a voice. In Seattle, the Court emphasized that the type of action it found objectionable was the A. creation of comparative burdens “on minority participation in the political Public higher education in Michigan is process.” The Seattle majority, however, unique in that “[t]he Michigan Constitution did not view state university admissions confers a unique constitutional status on committees as a part of the “political [Michigan’s] public universities and their process” in the manner of an elected school governing boards.” These boards are “the board or city council. A dialogue between highest form of juristic person known to the the majority and dissent in Seattle is law, a constitutional corporation of particularly instructive on this point. In independent authority, which, within the dissent, Justice Powell, critiquing the scope of its functions, is coordinate with and potential breadth of the majority’s holding, equal to that of the legislature.” … argued:

The governing boards have fully delegated Thus, if the admissions committee of the responsibility for establishing a state law school developed an admissions standards to several program- affirmative-action plan that came specific administrative units within each under fire, the Court apparently institution, which set admissions criteria would find it unconstitutional for any through informal processes that can include higher authority to intervene unless that authority traditionally dictated a faculty vote… admissions policies. As a constitutional matter, the dean of the [T]he majority emphasizes that the boards— law school, the faculty of the although they have fully delegated their university system as a whole, the decisionmaking power to admissions university president, the chancellor directors and faculty—can revoke this of the university, and the board of authority and can revise any bylaw in order regents might be powerless to intervene despite their greater to effect changes in university admission authority under state law. policies. … The majority, however, flatly dismissed this B. concern as a misunderstanding of the court’s decision: “It is evident, then, that the The decisionmaking structure at the horribles paraded by the dissent, which have universities is important because these nothing to do with the ability of minorities to program-specific faculty admissions participate in the process of self- committees are far afield from the legislative government—are entirely unrelated to this bodies from which lawmaking authority was case.” removed in Hunter and Seattle. To appreciate this critical difference, we need For the Seattle majority, then, an look no further than Seattle itself.

112 impermissible reordering of the political of its district to the local community process meant a reordering of the processes and its electorate.” To this end, each through which the people exercise their right school board is “vested with the final responsibility for the setting of policies to govern themselves. ensuring quality in the content and the extent of its educational program.” Thus, the academic processes at work in state university admissions in Michigan are It was only upon its consideration of the not “political processes” in the manner state statutory structure’s vesting of contemplated in Seattle... decisionmaking in local and politically accountable school boards that the Court Of course, when an elected body delegates a could conclude that “placing power over power, it does not automatically follow that desegregative busing at the state level ... the delegatee’s decisions fall outside the restructured the Washington political political process. But that is not the point. process.” Taking this into account, it is … difficult to conclude that, in amending their state constitution to prohibit the use of racial Although the majority appears to see no preferences in university admissions, the reason to distinguish between the unelected people of Michigan modified “the and unresponsive program-specific faculty community’s political mechanisms ... to admissions committees here and the place effective decisionmaking authority legislative bodies from which lawmaking over a racial issue at another level of authority was removed in Hunter and government.”… Seattle, a consideration of political accountability in the political process is In short, Michigan has chosen to structure its squarely grounded in the Seattle opinion. In university system such that politics plays no Seattle, the Court undertook a close part in university admissions at all levels examination of Washington’s system of within its constitutionally created “establish[ing] the local school board, rather universities. The Michigan voters have than the State, as the entity charged with therefore not restructured the political making decisions of the type at issue,”: process in their state by amending their state constitution; they have merely employed it. But Washington has chosen to meet its educational responsibilities primarily IV. through “state and local officials, boards, and committees,” and the Finally, it is plain that Proposal 2 does not responsibility to devise and tailor violate the Equal Protection Clause under a educational programs to suit local needs traditional approach to equal protection. has emphatically been vested in the “The central purpose of the Equal Protection local school boards. Clause of the Fourteenth Amendment is the Thus “each common school district prevention of official conduct discriminating board of directors” is made on the basis of race.” We apply strict “accountable for the proper operation

113 scrutiny to laws that (1) include a facial [ROGERS, Circuit Judge, dissent omitted] racial classification or (2) have a discriminatory impact and a discriminatory SUTTON, Circuit Judge, dissenting. purpose. Proposal 2, which prohibits racial classifications, a fortiori does not classify I join Judge Gibbons’ dissent and write facially on the basis of race. As to separately to make a few additional points. discriminatory impact and purpose, the district court did find “sufficient evidence to Today’s lawsuit transforms a potential virtue establish a fact question on the disparate of affirmative action into a vice. If there is impact part of the test” but found no one feature of affirmative-action programs discriminatory purpose. Indeed, it stated that that favors their constitutionality, it is that “the demonstration of a discriminatory they grow out of the democratic process: the purpose ... dooms [the] conventional equal choice of a majority of a State’s residents to protection argument” because it “cannot [be] create race-conscious admissions sa[id] that the only purpose of Proposal 2 is preferences at their public universities not to to discriminate against minorities.” The benefit a majority race but to facilitate the district court’s conclusions are correct. educational opportunities of disadvantaged “[A]bsent a referendum that facially racial minorities. Such democratically discriminates racially, or one where enacted programs, like all democratically although facially neutral, the only possible enacted laws, deserve initial respect in the rationale is racially motivated, a district courts, whether the particulars of a program court cannot inquire into the electorate’s satisfy the Fourteenth Amendment. motivations in an equal protection clause context.” Thus, no heightened level of Yet this lawsuit turns these assumptions on scrutiny need be applied to Proposal 2, and their head. Democracy, it turns out, has under rational basis review, Proposal 2 is nothing to do with it. Plaintiffs insist that the easily justifiable. Proposal 2 does not violate Fourteenth Amendment’s guarantee of the Equal Protection Clause under the “equal protection of the laws” imposes two conventional analysis. … new rules on the policy debates surrounding affirmative action in higher education. Rule VI. one: States not only may establish race- conscious affirmative-action programs, but For these reasons, I would conclude that they must do so to comply with the Proposal 2 does not violate the Equal Fourteenth Amendment. Rule two: even if Protection Clause of the United States the Fourteenth Amendment does not Constitution under either a political mandate that States establish affirmative- restructuring theory or traditional theory of action programs at their public universities, equal protection. Accordingly, I would it bars them from eliminating such programs affirm the judgment of the district court. through amendments to their constitutions.

114 A. may not resort to the political process to eliminate racial preferences because the The first theory has little to recommend it, Fourteenth Amendment demands them, the so little that the notion of mandatory claimants alternatively insist that the affirmative action will come as a surprise to “political process doctrine” of the all Justices of the United States Supreme Fourteenth Amendment separately prohibits Court, past and present, who have labored to the State from eliminating such programs determine whether state universities may already in existence by way of a state ever enact such race-conscious programs constitutional amendment. That is not much under the United States Constitution… of an alternative, as it comes to the same end. More fundamentally, the argument Plaintiffs nonetheless insist that, “to the misapprehends what States may do as a extent that [Proposal 2] ... bar[s] race or matter of “politics” and “process.”… gender conscious programs that would be permissible under the Fourteenth By any reasonable measure, Proposal 2 does Amendment, it violates the Equal Protection not place “special burdens” on racial Clause.” Yet the words of the one minorities. It bans “discriminat[ing] against, amendment (prohibiting the State from or grant[ing] preferential treatment to, any “discriminat[ing] ... on the basis of race”) individual or group on the basis of race, sex, cannot violate the words of the other (“nor color, ethnicity, or national origin in the shall any State deny to any person ... the operation of public employment, public equal protection of the laws”). education, or public contracting.” That is not a natural way to impose race-based burdens. That is especially true in the context of The words of the amendment place no classifications based on race, which are burden on anyone, and indeed are designed presumptively unconstitutional and which to prohibit the State from burdening one must run the gauntlet of strict scrutiny to racial group relative to another. All of this survive. If racial preferences are only furthers the objectives of the Fourteenth occasionally and barely constitutional, it Amendment, the same seed from which the cannot be the case that they are always political-process doctrine sprouted. required. A State that wishes to treat citizens of all races and nationalities equally “is free That the people of Michigan made this as a matter of its own law” to do so. A first change through their Constitution, as premise for resolving this case is, and must opposed to state legislation or a new policy be, that a State does not deny equal embraced by the governing boards at the treatment by mandating it. three state universities, does not impose a “special burden” on any racial minority. B. There is nothing unusual about placing an The claimants’ other theory is of a piece. equal-protection guarantee in a Having argued that the people of Michigan constitution...

115 Proposal 2 violates the political-process I do not doubt that Proposal 2 places a doctrine, so too would a decision by the burden on proponents of affirmative action: Michigan Supreme Court that comes to the They no longer have access to it, and they same end through a permissible must amend the constitution to get it back. interpretation of the 1963 equal-protection But the Fourteenth Amendment insists only guarantee… that all participants in the debate have an equal shot… It would be paradoxical if The Court’s decision in Romer v. Evans, something called the “political process which did not concern racial classifications, doctrine” insulated one side of a vigorous holds nothing to the contrary. policy debate from a timeless rule of enacted a constitutional amendment politics: win some, lose some… prohibiting the State and its municipalities from enacting laws banning discrimination Another oddity of this theory is that it would on the basis of “homosexual, lesbian or apply even if the Michigan Constitution bisexual orientation, conduct, practices or eliminated affirmative-action programs in relationships.” In invalidating the another way. In 1963, the people of amendment, the Court noted that the Michigan passed an earlier amendment to amendment “impos[es] a broad and their Constitution, one that prohibited race undifferentiated disability” (the inability to discrimination by governmental entities. In seek protection from discrimination at the view of this prohibition, a Michigan resident state or local level) “on a single named surely would have the right to bring a claim group” (gays and lesbians). The amendment that the State Constitution’s existing “was inexplicable by anything but animus prohibition on race-based classifications toward the class it affects” and therefore bars a system of racial preferences in “lack[ed] a rational relationship to legitimate admissions, contracting and employment. If state interests.” By contrast, Proposal 2 there is one thing that the closely divided serves a rational interest, indeed a decisions in Regents of Univ. of Cal. v. compelling one: eliminating racial Bakke, Gratz and Grutter illustrate, it is that classifications in admissions, public the Michigan Supreme Court could employment and public contracting. reasonably invalidate, or reasonably uphold, racial preferences under the State The Court’s decisions in Hunter and Seattle, Constitution’s existing equal-protection which did concern racial classifications, also guarantee. A decision invalidating racial hold nothing to the contrary. The laws preferences, however, would have precisely invalidated in both cases were designed to the same effect as Proposal 2, establishing disadvantage one minority group—African- that the Constitution bars racial preferences Americans—and no other… and placing the onus on proponents of racial preferences to alter the Constitution. The The same cannot be said of Proposal 2. In claimants have no answer to this point. If the first place, Proposal 2 removes racial

116 preferences, not anti-discrimination children of alumni to how to treat football measures. To the extent Proposal 2 has any players, oboists or thespians. The Equal effect on the political structures through Protection Clause reflects our collective which a group may acquire special treatment judgment that generalizations based on race in university admissions, it is a leveling are dubious in the near term and destructive one… If ever there were a neutral, non- in the long term, making it appropriate to special burden, that is it. The Equal treat racial proxies, which are presumptively Protection Clause freely permits unconstitutional, differently from other governments to ban racial discrimination, as more-pedestrian distinctions, which are here, but it does not freely permit them to presumptively constitutional. It does not bar ban all bans on racial discrimination, as in Michigan from recognizing the same. Hunter and Seattle. Any doubt that Hunter and Seattle support In the second place, Proposal 2 prohibits rather than undermine the constitutionality discrimination not just on the basis of race of Proposal 2 is removed by Seattle, the last but also on the basis of sex, ethnicity and of the two decisions. In Seattle, Justice national origin. To the extent it Powell, no stranger to affirmative-action disadvantages anyone, it disadvantages debates, raised the concern that the groups that together account for a majority majority’s reasoning meant that, “if the of Michigan’s population, not this or that admissions committee of a state law school racial minority. It “make[s] little sense to developed an affirmative-action plan that apply ‘political structure’ equal protection came under fire, the Court apparently would principles where the group alleged to face find it unconstitutional for any higher special political burdens itself constitutes a authority to intervene unless that authority majority of the electorate.” traditionally dictated admissions policies.” No worries, the majority responded: The Nor is it even clear which groups—men or problem with Washington’s anti-busing women, this racial group or that one— initiative was “the burden it impose[d] on Proposal 2 helps and hurts, or when each minority participation in the political group will be affected. Perhaps there was a process,” a consideration that made Justice time when a ban on gender-based Powell’s hypothetical “entirely unrelated to preferences favored men… this case” because it had “nothing to do with the ability of minorities to participate in the It is no answer to say that Michigan may process of self-government.” If the Court adopt a statewide policy regarding racial thought that the removal of an affirmative- preferences if, and only if, they adopt action policy was “entirely unrelated” to the statewide policies on other admissions concerns in Seattle, then I am hard-pressed policies—from how much weight to give to understand why the same is not true in Advanced Placement courses to how many this instance—and just as hard-pressed to zoology students to admit to how to treat understand how anyone can insist our hands

117 are tied in today’s case. The companion The ill-advised “political structure” doctrine political-process case to Seattle, handed employed by the majority in this case was down the same day, confirmed the point. crafted by the Supreme Court more than one The “Equal Protection Clause,” it made hundred years after the ratification of the clear, “is not violated by the mere repeal of Fourteenth Amendment. Before today, the race-related legislation or policies that were cases fitting its mold numbered three: not required by the Federal Constitution in Hunter v. Erickson,Washington v. Seattle the first place.” That is all that happened Sch. Dist. No. 1,and Lee v. Nyquist. The here. The majority seeing it differently, I infrequent use of the doctrine is not respectfully dissent. surprising given its lack of a constitutional basis. It replaces actual evidence of racial GRIFFIN, Circuit Judge, dissenting. motivation with a judicial presumption and, hence, is an aberration inconsistent with the Today’s decision is the antithesis of the Fourteenth Amendment. Equal Protection Clause of the Fourteenth Amendment. The post-Civil War The laws at issue in Hunter and Seattle were amendment that guarantees equal protection both facially neutral. Yet, in each case, the to persons of all races has now been Supreme Court held that strict scrutiny construed as barring a state from prohibiting applied without any need for the respective discrimination on the basis of race… I join plaintiffs to show that the laws were enacted Judge Gibbons’ dissent, except for Section as a result of discriminatory intent or were III, and write separately to emphasize that inexplicable on grounds other than race. It the “political structure” doctrine is an simply declared that there was an “ anomaly incompatible with the Equal ‘explicitly racial classification’ ” where the Protection Clause. I urge the Supreme Court prior law inured to the benefit of racial to consign this misguided doctrine to the minorities, and the newly enacted law annals of judicial history. moved the applicable decisionmaking process to a more remote level of The Equal Protection Clause provides that government. “[n]o State shall ... deny to any person within its jurisdiction the equal protection of These decisions are justifiably characterized the laws.” Under its application, a state law as “jurisprudential enigmas that seem to lack is subject to strict scrutiny when it explicitly any coherent relationship to constitutional distinguishes between individuals on the doctrine as a whole.” “In the absence of a basis of race… federal constitutional violation requiring race-specific remedies, a policy of strict Facially neutral laws, on the other hand, racial neutrality by a State ... violate[s] no warrant strict scrutiny only if they are federal constitutional principle.” “motivated by a racial purpose or object,” Moreover, as first noted by Justice Powell,

118 the political structure doctrine contracting, survive this court’s ruling. unconstitutionally suspends our normal and Further, the Michigan constitutional necessary democratic process by prohibiting prohibitions against discrimination or change when a lower level of state preferential treatment based on race, except government has acted in a way that arguably in the operation of public colleges and benefits racial minorities. … universities regarding “racial minorities,” remain in effect. In this regard, art. I, § 26(7) Finally, in an effort to avoid confusion and contains a severability clause: “Any aid further review, I note the limits of the provision held invalid shall be severable majority’s holding. My colleagues do not from the remaining portions of this section.” declare MICH. CONST. art. I, § 26 unconstitutional in its entirety. Rather, their I caution that because the term “racial holding is limited to “racial minorities” and minorities” is not defined by the majority our court’s declaration “[f]inding those opinion, the class of persons benefitting provisions of Proposal 2 affecting from it is unclear and will be a potent source Michigan’s public colleges and universities of litigation were it allowed to stand. Under unconstitutional....” Thus, the other today’s en banc decision, not all persons are provisions of MICH. CONST. art. I, § 26 entitled to the equal protection of the laws. that prohibit discrimination and preferential treatment on the basis of sex, ethnicity, or For these reasons, I would affirm the district national origin in the operation of public court and therefore respectfully dissent. employment, public education, and public

119 “Supreme Court Takes New Case on Affirmative Action, From Michigan” New York Times March 25, 2013 Adam Liptak

The Supreme Court on Monday added a new conscious admissions policy: she could affirmative action case to its docket. It lobby the admissions committee, she could is already considering a major challenge to petition the leadership of the university, she the University of Texas’ race-conscious could seek to influence the school’s admissions program. governing board, or, as a measure of last resort, she could initiate a statewide The new case, Schuette v. Coalition to campaign to alter the state’s Constitution,” Defend Affirmative Action, No. 12-682, Judge R. Guy Cole Jr. wrote for the concerns a voter initiative in Michigan that majority. banned racial preferences in admissions to the state’s public universities. In November, “The same cannot be said,” Judge Cole the United States Court of Appeals for the added, “for a black student seeking the Sixth Circuit, in Cincinnati, ruled that the adoption of a constitutionally permissible initiative, which amended the State race-conscious admissions policy. That Constitution, violated the federal student could do only one thing to effect Constitution’s equal protection clause. change: she could attempt to amend the Michigan Constitution — a lengthy, The initiative, approved in 2006 by 58 expensive and arduous process — to repeal percent of the state’s voters, prohibited the consequences of Proposal 2.” discrimination or preferential treatment in public education, government contracting A dissenting member of the court, Judge and public employment. Groups favoring Jeffrey S. Sutton, wrote that the majority affirmative action sued to block the part of had it backward. “A state does not deny the law concerning higher education. equal treatment by mandating it,” he said.

The appeals court majority said the problem The majority opinion, he added, “transforms with the law was that it restructured the a potential virtue of affirmative action into a state’s political process by making it harder vice.” for disfavored minorities to press for change. “If there is one feature of affirmative action programs that favors their constitutionality,” “A student seeking to have her family’s he said, “it is that they grow out of the alumni connections considered in her democratic process.” application to one of Michigan’s esteemed public universities could do one of four In urging the Supreme Court to hear the things to have the school adopt a legacy- case, Bill Schuette, Michigan’s attorney general, said the Sixth Circuit decision was

120 “exceedingly odd” in saying, in essence, that was in the majority, was initially nominated the government must engage in affirmative by President Bill Clinton and was later action. renominated by President George W. Bush as part of a compromise involving several A brief filed by the American Civil Liberties nominations.) Union defended the decision. The United States Court of Appeals for the “The vice of Proposal 2,” the brief said, “is Ninth Circuit, in San Francisco, came to the that it selectively shuts off access to the opposite conclusion in 1997, upholding the ordinary political processes for advocates of state’s ban on racial preferences in higher otherwise permissible race-conscious education and saying it “would be policies.” paradoxical” to rule otherwise. The court reaffirmed that ruling in 2010. The decision the Supreme Court will review was decided by an 8-to-7 vote. The eight The case the Supreme Court agreed to hear judges in the majority were all nominated by on Monday will be considered in the term Democratic presidents. The seven judges in that starts in October. A decision in the dissent were all nominated by Republican Texas case is expected shortly. presidents. (Judge Helene N. White, who

121 “Affirmative Action in Texas and Michigan” SCOTUSblog May 1, 2013 Stephen Wermiel

When the Supreme Court agreed in February of smaller classes and academic 2012 to hear the University of Texas departments. undergraduate admissions case, there was no question that the appeal set up a major test Abigail Fisher, who is Caucasian, applied of affirmative action. But why, with that for admission to the university. But she was case still lingering on the docket as the only not in the top ten percent of her class, and undecided case from the Court’s October she did not receive one of the remaining sitting, would the Justices agree to hear a slots. She then challenged her denial of second affirmative action case, this one from admission, arguing that she was a victim of Michigan, to be argued next fall? discrimination based on her race in violation of the Fourteenth Amendment’s Equal The short answer is that the two cases are Protection Clause. Both the federal district totally different. court and U.S. Court of Appeals for the Fifth Circuit upheld the Texas plan. Just how they differ and what the Court may consider in each of the cases is worth In the Supreme Court, Fisher’s lawyer exploring. The answer may be of interest to disclaimed any interest in having the students of the Supreme Court and to those Justices reverse their 2003 decision, Grutter interested in civil rights law and affirmative v. Bollinger, upholding the limited use of action. affirmative action at the University of Michigan Law School. Instead, he asked the The Texas case, Fisher v. University of Court to strike down the university’s use of Texas, is at this point the better known of the race to fill the remaining slots and to clarify two. The case is a challenge to an that it goes beyond the very narrow affirmative action plan in which race is circumstances in which race may be taken taken into account as a factor for admission into account. to the University of Texas. Most of the undergraduate places in the entering class Ordinarily, if another affirmative action case are filled through a plan which guarantees a came along while the Texas appeal was spot to any student who graduates in the top awaiting decision, the Justices would hold ten percent of a Texas high school. But the the second case until they decide the first. remaining slots – about nineteen percent of Then the Court would either grant the the total spaces – are filled by a second second case, vacate the ruling, and send it program that considers race among other back to the lower court to apply the newly factors to promote diversity in the make-up announced rule or, perhaps, grant the second

122 case if there are additional issues to be case, by contrast, asks whether the ban on addressed. affirmative action violates the Equal Protection Clause. But the Court did neither of those things with Schuette v. Coalition to Defend The Sixth Circuit ruled in the Michigan case Affirmative Action, involving affirmative that because race-based affirmative action is action in Michigan. Instead, it granted the still permitted by the Constitution, a petition for certiorari on March 25 without decision by the voters of the state to prohibit waiting to decide Fisher first. this remedy distorts the political process and imposes a burden based on race that violates The reason is that Schuette presents the Equal Protection Clause. The ruling affirmative action issues in an entirely turns not on the Court’s long line of different context. The case involves a affirmative action cases but rather on a challenge to Proposal 2, an amendment to shorter set of precedents holding that the Michigan Constitution, approved by individuals may not have their ability to voters in 2006, that banned affirmative participate in and influence the political action in the state. The statewide ban was process made more difficult because of their challenged by a coalition of groups and race. The Sixth Circuit found that amending individuals who support the continued use of the state constitution made it affirmative action in Michigan. Other unconstitutionally difficult to advocate for lawsuits were filed as well, but a federal the lawful remedy of affirmative action. district court largely upheld the ban enacted by the voters. That the Texas and Michigan cases are different is underscored in the legal The appeal roiled the U.S. Court of Appeals arguments. The Sixth Circuit opinion does for the Sixth Circuit, where a three-judge not cite the Fisher case at all. And the only panel initially struck down the affirmative reference to Fisher in the Supreme Court action ban by a two-to-one vote. Then the appeal of the Michigan case is in a footnote full Sixth Circuit agreed that Proposal 2 was in the petition by Michigan Attorney unconstitutional, ruling eight to seven in an General Bill Schuette which says, “This case en banc decision that the voters had violated presents the different issue whether a state the Equal Protection Clause. The ruling by has the right to accept this Court’s invitation the full appeals court produced five separate in Grutter to bring an end to all race-based dissenting opinions. The Supreme Court preferences.” The invitation is a reference to agreed to hear the appeal, and argument in the suggestion by former Justice Sandra Day the case will be held next fall. O’Connor in Grutter that affirmative action should have an end point, perhaps twenty- The two cases are, in a sense, mirror images five years after the 2003 Grutter decision. of one another. The Texas case asks whether the use of affirmative action violates the Yet saying that the two cases are different Equal Protection Clause. The Michigan and do not rely on one another is a strangely

123 unsatisfying answer. If the Supreme Court speculation that the Texas ruling must be were to virtually abolish affirmative action imminent or that the Court would dismiss inFisher, for example, that might seem to the Texas case for procedural reasons – obviate the need for a ruling in the Michigan specifically, that Abigail Fisher has now case. graduated from another university, although she still seeks damages. At the same time, it also seems odd to think that the Court may not say anything in the One thing the two cases share in common is Texas case that will have an impact on the that Justice Elena Kagan is not participating Michigan case. Of course, the fact that the in either one, leaving an eight-Justice Court Court granted the Michigan case does not to wrestle with the important issues. With preclude the Justices from saying something only eight participants and a Court closely in the Texas decision that is relevant to the divided over issues of race, there are myriad Michigan appeal. possibilities for how these cases might come out. Stay tuned this spring for the Texas What lies ahead in this volatile field is ruling, and probably a year from now for uncertain, then. When the Court granted the Michigan. Michigan petition in March, there was

124 “U.S. Court Takes Small Step to Bridge Ideological Divide”

Reuters Joan Biskupic June 25, 2013

It may never be clear what happened behind the been easy and its series of tightly decided scenes at the U.S. Supreme Court to yield rulings reflect the country's ambivalence. Monday's compromise decision upholding university affirmative action. The case was For now, the court has left intact the scaffolding heard in October, the first month of the term, of the historic 1978 opinion in Regents of the and as the months went by and the justices v. Bakke, which first deliberated in secret, the suspense grew. voiced the diversity rationale, and a 2003 decision, Grutter v. Bollinger, which vigorously Would this conservative-dominated court end affirmed the value of diversity. Both of those university affirmative action? Closely watching cases were decided on 5-4 votes. were supporters who emphasized that education remains a gateway to opportunity for long- The justices cast some doubt on the University excluded blacks and Hispanics, as well as critics of Texas' racial admissions, however, by saying who said racial policies are unfair and no longer that lower court judges had too generously required in multicultural America. deferred to university officials. Monday's ruling ordered the lower appeals court to reconsider its In the end, Monday's ruling was a modest one stance upholding the admissions. that took the smallest of steps. Written by Justice Anthony , the 7-1 ruling permits CONSERVATIVES, LIBERALS JOIN admissions officers to continue considering TOGETHER applicants' race to ensure campus diversity. That The opinion was joined by Chief Justice John it took more than eight months - until the last Roberts and three other conservative justices week of the term - suggests protracted who have criticized racial remedies, and by two discussions and special care went in to garnering liberals, including Justice Sonia Sotomayor, a the support of justices across the ideological Latina who attended Princeton and Yale law divide. school on affirmative action and has touted the But even as the justices found common ground value of such programs. in the University of Texas case, they ensured But tensions plainly linger. Justice Ruth Bader that the last chapters of the national struggle Ginsburg, the only justice to dissent from the with race have yet to be written. They already decision ordering a tougher lower-court review have a related racially charged case from of the Texas program, read portions of her Michigan on the calendar for next term and the opinion from the bench on Monday. She said the legal standard voiced in Monday's decision majority should have simply upheld the Texas could eventually bring the Texas race-based policy. Addressing broadly the value of racial admissions policy back to the high court. policies, Ginsburg, the senior liberal on the The role of the country's highest court in the bench, said, "State universities need not blind decades-long affirmative action saga has never themselves to the still lingering, every day evident, effects of centuries of law-sanctioned

125 inequality." University of Michigan dispute, and O'Connor was succeeded by Justice Samuel Alito, far more Among the spectators in the white marble conservative on racial policies and the U.S. courtroom was Justice Sandra Day O'Connor, Constitution's equality guarantee. whose 2003 decision in Grutter v. Bollinger was at stake - and remained largely preserved for But, on this go-round, both accepted the 2003 now. The retired 83-year-old justice sat with her decision. hands clasped on her lap while Kennedy outlined the majority opinion. "The attainment of a diverse student body," Kennedy wrote, "serves values beyond race When O'Connor penned her decision in the 2003 alone, including enhanced classroom dialogue case from the University of Michigan, the and the lessening of racial isolation and majority expected the decision to hold for about stereotypes." 25 years, "when the use of racial preferences will no longer be necessary to further the interest Liberal justices Sotomayor and Stephen Breyer approved today." were ready to sign on, possibly enticed by Kennedy's acceptance of the basic framework of Advocates on both sides thought the end might the 2003 Grutter decision. The court's fourth come sooner than the O'Connor majority had liberal, Elena Kagan, did not participate because supposed, given the interests of the Roberts of her involvement in the dispute as U.S. court. solicitor general before she joined the bench in 2010. Abigail Fisher, a white suburban Houston student, began Monday's lawsuit, claiming she In the term that begins next October, the justices was wrongly rejected by the university when will hear a case testing the constitutionality of a minorities with similar test scores and grades statewide ban on race-based affirmative action were admitted. The current majority took the in public education, employment and Texas case though university officials said the contracting. Michigan voters adopted the case was procedurally flawed because Fisher prohibition in 2006. A Supreme Court decision decided to go to State University, that upholds it could embolden affirmative from which she graduated last year. action opponents. But such a decision would affect only Michigan and the few other states The challenged program that considers that have such bans. applicants' race supplements a Texas policy guaranteeing admission to the Austin flagship A broader decision that affects campuses campus for high school graduates scoring in the nationwide would have to come in another case. top 10 percent of their individual schools. For now, university policies aimed at racial Administrators contended the 10 percent diversity remain constitutional. Said University program did not make the university sufficiently of Virginia law professor John Jeffries, diverse. biographer of Justice Lewis Powell who was the author of Bakke, said of Monday's decision, "It DIVERSITY VALUED leaves the Powell position (for) diversity ... The ideological makeup of the court suggested it alive, with a chance to fight again another day." might be ready to roll back affirmative action. Justice Kennedy had dissented from the 2003

126 “6th Circuit: Proposal 2 Unconstitutional” The Michigan Daily November 15, 2012 Rayza Goldsmith

The court issued an 8-7 decision to overturn “Because less onerous avenues to effect a state ballot initiative — commonly known political change remain open to those as Proposal 2, which was voted into law in advocating consideration of non-racial 2006 — that banned the use of “preferential factors in admissions decisions, Michigan treatment” in state decisions regarding cannot force those advocating for university admissions or employment on the consideration of racial factors to traverse a basis of race, sex, color, ethnicity or national more arduous road without violating the origin. Fourteenth Amendment,” Cole wrote. “We thus conclude that Proposal 2 reorders the The ruling was made by all 15 judges on the political process in Michigan to place 6th Circuit Court of Appeals, at the request special burdens on minority interests.” of Michigan Attorney General Bill Schuette, a defendant in the case. A three-judge panel Law Prof. Mark Rosenbaum, who helped of the 6th Circuit Court of Appeals made an argue the case on behalf of the plaintiffs, initial ruling against Proposal 2 in July 2011. said he was overwhelmed by the decision and excited about its implications. The majority ruled that the ban on the basis of race is a violation of the Equal Protection “It’s a landmark civil rights issue,” Clause of the 14th Amendment to the U.S. Rosenbaum said. “It is not about the Constitution and therefore unconstitutional. constitutionality of affirmative action; it is a The decision overturns a previous decision bigger story than that. It’s about access to made by the U.S. District Court for the the political process. It is about whether or Eastern District of Michigan at Detroit, not a popular initiative can cut minorities — which ruled Proposal 2 to be constitutional. people of color — out of the political process.” The majority opinion was based on two primary arguments, rested on the argument Rosenbaum said even if the defendants, that admissions decisions can be considered including Schuette, appeal the decision, the a part of the political process. Judge R. Guy ruling will take immediate effect, meaning Cole Jr. wrote for the majority, arguing that the University could choose to use race as a Proposal 2 is unconstitutional based on the factor in admissions decisions. fact that it primarily harms minorities by reordering the political process and placing In a statement, Schuette said he intends to undue burden on them. appeal the decision to the U.S. Supreme Court on the basis that the Michigan Civil Rights Initiative — the amended section of

127 the constitution that effectively banned In a statement, University spokesman Rick affirmative action — is not only Fitzgerald said the University is reviewing constitutional, but also approved by a the decision, but because there are multiple majority of Michigan voters. lengthy opinions, it could take some time to fully understand the ruling's implications. “MCRI embodies the fundamental premise of what America is all about: equal George Washington, an attorney for By Any opportunity under the law,” Schuette said. Means Necessary — a pro-affirmative “Entrance to our great universities must be action group that helped argue the case based upon merit. We are prepared to take before the court — said he would like to see the fight for quality, fairness and the rule of a turnaround from the drop in minority law to the U.S. Supreme Court.” enrollment as a result of the decision.

In order to have the case heard at the “It is a tremendous victory for black and Supreme Court level, Schuette must file a Latino students and for the movement that petition of certiorari within 90 days of fought for affirmative action for many Thursday’s decision. years,” Washington said. “It means that thousands of black, Latino and Native In his dissenting opinion, Judge Danny American students who would not have the Boggs drew on the fact that Proposal 2 was chance to go to our most selective colleges enacted by voters to make his case. will now have that chance.”

“We have the citizens of the entire state Residential College Prof. , a establishing a principle that would, in leading proponent of Michigan’s Proposal 2, general, have seemed laudable,” Boggs said the majority opinion is incorrect in its wrote. assertion that Proposal 2 violates the Equal Protection Clause because it places an undue Boggs also wrote in the dissent that the burden on those who seek preference, majority’s case was a stretch and relied on adding that the opinion is based on tenuous precedent. ludicrous, circuitous logic. He responded to the majority’s assertion that “The argument upon which the 6th Circuit admissions decisions fall within the jurisdiction of political processes, contending that such an Court of Appeals based its reversal is argument does not have historical backing and absolutely unbelievable,” Cohen said. that Proposal 2 is inherently not discriminatory. “That's really acrobatic, that the constitutional amendment that says you may “Under these circumstances, holding it to be not give preferences violates the a violation of equal protection for the constitutional amendment that says you may ultimate political authority to declare a not give preference.” uniform policy of non-discrimination is vastly far afield from the Supreme Court precedents,” Boggs wrote.

128 “Supreme Court is Urged to Reject Michigan Affirmative Action Ban”

Los Angeles Times David Savage August 30, 2013

California Atty. Gen. Kamala Harris urged the individual or group on the basis of race, sex, Supreme Court on Friday to strike down a college, ethnicity or national origin." Michigan voter initiative that bans "preferential treatment" based on race in its state colleges and Lawyers challenging the measure say that universities, a ruling that would likely invalidate because it became part of the state constitution, a similar ban approved by California's voters in they were deprived of the equal chance to lobby 1996. for affirmative-action policies in the state Legislature or before university officials. They These bans on affirmative action "violate the say they want a Supreme Court ruling that Equal Protection Clause" of the Constitution, would also wipe out the nearly identical voter- Harris said, by "erecting barriers to the adoption approved bans in California, , of race-conscious admissions policies." Washington, and .

For a second term in a row, the high court is set In November, they won an 8-7 ruling by the to consider a major test of affirmative action in Cincinnati-based 6th Circuit Court of Appeals, state universities. In June, the court revived a which declared unconstitutional Michigan's white student's challenge to a race-based Proposition 2. It "undermines the Equal admissions policy at the University of Texas. In Protection Clause's guarantee that all citizens October, the court will consider a constitutional ought to have equal access to the tools of challenge that comes from the opposite political change," said Judge R. Guy Cole Jr. His direction. Lawyers representing black and other opinion spoke for all eight Democratic minority students are contesting Michigan's ban appointees to the appeals court, while the seven on affirmative action. Republican appointees dissented.

Separately, the University of California's Michigan Atty. Gen. Bill Schuette appealed, and president and 10 chancellors filed their own the court will hear arguments in the case of brief Friday highlighting the ban on affirmative Schuette vs. Coalition to Defend Affirmative action. "More than 15 years after Proposition Action on Oct. 15. 209 barred consideration of race in admissions decisions … the University of California still Harris' brief for California was also signed by struggles to enroll a student body that Lisa Madigan of Illinois and four other attorneys encompasses the broad racial diversity of the general, though none have similar voter state," they said. measures that turn on the outcome. Usually, a state's top attorneys intervene in pending In 2006, Michigan's voters approved Proposition Supreme Court cases to defend their state's laws. 2, 58% to 42%. Using the words of the In this instance, however, the California attorney California measure, the ban said Michigan's general is asking the justices to hand down a public universities "shall not discriminate ruling that would void a provision in California's against, or grant preferential treatment to, any Constitution.

129 Last year, Harris also refused to defend in this case.... It is particularly important for California's Proposition 8 and its prohibition on states with large nonwhite populations to ensure same-sex marriage after it had been struck down that students of all races have meaningful access by a judge in San Francisco. The Supreme Court to their public colleges and universities." in June, citing the state's refusal, said the private sponsors of the ballot measure did not have legal She lauded the "well-reasoned decision" of the standing to defend it in court. 6th Circuit and said the students and citizens should be free to press for "race-conscious Harris took office as attorney general in January admissions policies." 2011. Her website describes her as "the first woman, the first African American and the first Harris' brief for California was also signed by South Asian to hold the office in the history of the top attorneys from five other states and the California." District of Columbia: Madigan of Illinois, David Louie of Hawaii, Thomas Miller of Iowa, Gary Her friend-of-the-court brief read: "California King of New Mexico, Ellen Rosenbaum of has a particular interest in the outcome of this Oregon and Irvin Nathan from Washington, case because, as in Michigan, its voters amended D.C. its Constitution to add language virtually identical to the constitutional provision at issue

130 “What’s Your Hurry?”

The New York Times Linda Greenhouse June 12, 2013

Every Supreme Court decision day that goes decided by an eight-member court, a case by without a ruling in the University of afflicted with a major procedural obstacle — Texas affirmative action case provokes a the disappointed white applicant has already generalized wringing of hands from those received her college degree elsewhere, a fact eager (or afraid) to learn the constitutional that would seem to make the case moot, as future of university admissions. “Where’s an earlier, more restrained Supreme Court the case? What’s taking so long?” found 40 years ago when confronted with a similar situation in an affirmative action To which I say: what’s the rush? case it had undertaken to decide. This is a court in a hurry. The justices made that True, Fisher v. University of Texas was strikingly clear back in March, when they argued way back on Oct. 10, making it the accepted a case on the validity of a voter oldest argued case on the court’s docket by referendum in Michigan that barred more than six weeks. True, cases argued as affirmative action in public university recently as late April have already been admissions. The United States Court of decided, and it’s rare for June to arrive with Appeals for the Sixth Circuit had declared an October case still hanging. the ban unconstitutional by a vote of 8 to 7. By the time the Supreme Court agreed on So I’m as puzzled as the next person as to March 25 to hear the Michigan attorney precisely why the eight justices participating general’s appeal, its calendar for the current in this case (Justice Elena Kagan is recused, term was full, so the case won’t be argued due to her earlier work on the case as until after the new term begins in the fall. solicitor general) haven’t been able to produce a decision. But that’s not really my The new case, Schuette v. Coalition to point. Defend Affirmative Action, differs from the Texas case in presenting an oblique rather Rather, I’m questioning why the justices set than direct attack on affirmative action. The out to decide this case in the first place. Why question is whether by adding the anti- were they eager to get their hands around the affirmative action provision to the state issue so soon after suggesting, in the 2003 constitution, the referendum altered the decision that upheld race-conscious political process in a way that violates the admission in the University of Michigan federal constitutional guarantee of equal Law School, that the country and the court protection. This “political process” question, should let the matter rest for 25 years? Why which the court has wrestled with for years, would they pick a case destined to be won’t be answered by what the court does in

131 the Texas case. But it’s hard to imagine that This near-obsession with Justice Ginsburg’s the Texas decision won’t provide the lens age, health and plans has obscured the fact through which to examine the issue in the that the conservative justices are growing Michigan case. old at exactly the same rate. Justice Antonin Scalia turned 77 in March. Justice Kennedy When the justices receive a new appeal that turns 77 next month. Even Justice Clarence raises questions in the general vicinity of a Thomas, a mere 43 when he was named to case they have already agreed to decide, the court 22 years ago, becomes eligible on their routine response is to place the new June 23 for his Medicare card. case on hold to see how things shake out. It was therefore surprising that rather than Curt Levey, a prominent conservative deferring action on the Michigan case, the commentator, took the occasion of Justice court grabbed it. Scalia’s birthday to observe, in a op-ed, that it was entirely likely that at least One reason might be that Justice Anthony one of the five conservative justices would M. Kennedy, who almost certainly received leave the bench during the remainder of the the opinion assignment in the Texas case, Obama presidency. The result, he warned isn’t going far enough in that case to satisfy apocalyptically, was “a Warren Court the other conservative justices. Under this redux,” one that would erase “all the strides theory, those justices responded to what they conservatives have made since the Reagan saw as a frustratingly narrow Kennedy era in containing judicial activism.” opinion by jumping aboard the Michigan case as the next potential vehicle for Mr. Levey, a Harvard Law School graduate, shutting down affirmative action. They heads an organization called the Committee might have waited — traditionally, they for Justice, devoted to blocking Obama would have waited — but, as I said, it’s a administration judicial nominations. His court in a hurry. account of exactly what the court under Chief Justice Earl Warren can be blamed for The question is why. The answer, I believe, left a bit to be desired. “The Warren Court can be found in the faint but resonant brought us Roe v. Wade,” he asserted. In drumbeat of conservative concern about the fact, it was the Supreme Court under Chief stability of the Roberts Court’s narrow Justice Warren E. Burger that issued the conservative majority. Most uninformed 1973 abortion decision, with a 7-to-2 commentary on the future of the Supreme majority opinion joined by three of President Court — which is to say, most commentary Richard M. Nixon’s four appointees, — has focused on Justice Ruth Bader including the chief justice. Ginsburg, who just passed her 80th birthday. Is she about to retire, everyone asks, to Well, the details matter less, anyway, than permit President Obama to name her the overall theme, which is: be afraid, be replacement? (The answer is no, she’s very afraid. Or to put it another way, in the healthy and loves her job.) words of the old Janis Joplin song: get it

132 while you can. This is as good as it’s going prayer practice must be viewed as an to get. endorsement of a particular religious viewpoint.” Other federal courts confronted That impulse may also explain the court’s with similar facts have ruled the same way. otherwise mysterious decision a few weeks ago to grant review in a new church-state In recent years, the Supreme Court has been case, Town of Greece v. Galloway. The able to find near-unanimity in religion cases western New York town is appealing a only by deciding the cases on the narrowest federal appeals court’s decision that its possible grounds. So what would motivate practice of opening town board meetings the justices to reach for this little case, with with a prayer violates the Establishment its facts that are surely inauspicious for Clause. those who want to elevate the role of religion in the public square? I suppose the The problem that the United States Court of answer is: there’s nothing to lose, and if we Appeals for the Second Circuit found was don’t go for it now, it may only get harder in not the notion of prayer as such (the the years ahead. Supreme Court upheld the concept of legislative prayer 30 years ago but the fact Get it while you can — or even if you can’t. that nearly all the prayers offered at the We’ll see soon enough. board meetings were Christian, with most containing explicit references to Jesus and/or Christian theology. That pattern, the appeals court said, meant that “the town’s

133 Madigan v. Levin

12-872

Ruling Below: Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), cert granted, 133 S.Ct. 1600 (2013).

Harvey N. Levin worked as an Illinois Assistant Attorney General from September 5, 2000, until his termination on May 12, 2006. Levin was over the age of sixty at the time of his termination and believes he was fired because of his age and gender. Levin filed suit against the State of Illinois, the Office of the Illinois Attorney General, Illinois Attorney General Lisa Madigan, in her individual and official capacities, and four additional Attorney General employees in their individual capacities. He asserts claims for relief under the Age Discrimination in Employment Act (ADEA), Title VII of the , 42 U.S.C. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment via 42 U.S.C. § 1983. The individual-capacity defendants argued at the district court that they were entitled to with respect to Levin's § 1983 age discrimination claim. Specifically, they argued that Levin's § 1983 claim is precluded by the ADEA because the ADEA is the exclusive remedy for age discrimination claims. The district court disagreed and denied qualified immunity. The Court of Appeals for the Seventh Circuit held that the court had jurisdiction to decide whether the ADEA precluded a § 1983 equal protection claim; resolving a matter of first impression in the Circuit, the ADEA does not preclude a § 1983 claim for enforcement of constitutional rights; and individual defendants were not entitled to qualified immunity.

Question Presented: Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

Harvey N. LEVIN, Plaintiff–Appellee, v. Lisa MADIGAN, in her individual capacity, Ann Spillane, Alan Rosen, Roger Flahaven, and Deborah Hagan, Defendants–Appellants, and Lisa Madigan, in her official capacity as Attorney General of Illinois, Office of the Illinois Attorney General, and State of Illinois, Defendants. United States Court of Appeals, Seventh Circuit

134 Decided on August 17, 2012

[Excerpt; some footnotes and citations omitted.]

KANNE, Circuit Judge

Harvey N. Levin worked as an Illinois Consumer Fraud Bureau on September 5, Assistant Attorney General from September 2000. On December 1, 2002, Levin was 5, 2000, until his termination on May 12, promoted to Senior Assistant Attorney 2006. Levin was over the age of sixty at the General and retained this title until he was time of his termination and believes he was terminated on May 12, 2006. Levin was fired because of his age and gender. evaluated on an annual basis and his Accordingly, Levin filed suit against the performance reviews indicate that he State of Illinois, the Office of the Illinois consistently met or exceeded his employer's Attorney General, Illinois Attorney General expectations in twelve job categories. The Lisa Madigan, in her individual and official Illinois Attorney General's Office asserts, capacities, and four additional Attorney however, that Levin's low productivity, General employees in their individual excessive socializing, inferior litigation capacities. He asserts claims for relief under skills, and poor judgment led to his the Age Discrimination in Employment Act termination. Although not addressed in (ADEA), Title VII of the Civil Rights Act of Levin's evaluations, these issues were 1964, and the Equal Protection Clause of the discussed among Levin's supervisors and Fourteenth Amendment via 42 U.S.C. § brought to Levin's attention. 1983. The individual-capacity defendants argued at the district court that they were Levin was one of twelve attorneys fired in entitled to qualified immunity with respect May 2006. After he was terminated, Levin to Levin's § 1983 age discrimination claim. was replaced by a female attorney in her Specifically, they argued that Levin's § thirties. Two other male attorneys from the 1983 claim is precluded by the ADEA Consumer Fraud Bureau, both over the age because the ADEA is the exclusive remedy of forty, were also terminated and replaced for age discrimination claims. The district by younger attorneys, one male and one court disagreed and denied qualified female. The Illinois Attorney General's immunity. The case is now before us on Office disputes that these new hires interlocutory appeal, and for the following “replaced” the terminated attorneys because reasons, we affirm the judgment of the the younger attorneys were not assigned the district court. three former attorneys' cases. Levin filed his complaint in the Northern I. BACKGROUND District of Illinois on August 23, 2007, Levin was fifty-five years old when he was asserting claims of age and sex hired as an Assistant Attorney General in the discrimination under the ADEA, Title VII, Office of the Illinois Attorney General's and the Equal Protection Clause via 42

135 U.S.C. § 1983. The defendants in this suit discrimination. In that motion, the are divided into two groups for litigation Individual Defendants asserted that the § purposes: (1) Lisa Madigan, in her official 1983 claim was either precluded by the capacity as the Illinois Attorney General, the ADEA or they were entitled to qualified Office of the Illinois Attorney General, and immunity. After acknowledging that the the State of Illinois (the “Entity Seventh Circuit has yet to address ADEA Defendants”), and (2) Lisa Madigan as an exclusivity, Judge Coar held that the ADEA individual, Ann Spillane, Alan Rosen, Roger does not foreclose Levin's § 1983 equal Flahavan, and Deborah Hagan (the protection claim. But Judge Coar granted “Individual Defendants”). Only the qualified immunity for the Individual Individual Defendants have appealed to this Defendants because the availability of such court. a claim was not clearly established at the time Levin was terminated. On November 26, 2007, the Entity Defendants and the Individual Defendants On January 7, 2011, Levin's case was filed separate motions to dismiss Levin's reassigned to the Honorable Edmond E. complaint in its entirety. On December 12, Chang. Judge Chang issued an opinion on 2007, the district court stayed discovery, July 12, 2011, granting in part and denying requiring Levin to respond to the Entity in part the two pending motions for Defendants's motion as to whether he was an summary judgment. Levin II. Judge Chang “employee” for purposes of the ADEA and did not disturb Judge Coar's ruling that the Title VII. On September 12, 2008, the ADEA is not the exclusive remedy for age district court held that Levin was an discrimination claims. He did, however, “employee” and lifted the stay on discovery. reverse two of Judge Coar's prior rulings, in The Entity Defendants filed a second motion light of additional briefing. First, Judge to dismiss shortly thereafter. Following Chang determined that Levin is not an discovery, the Entity Defendants and the “employee” for purposes of Title VII and Individual Defendants filed separate motions the ADEA, thus foreclosing any claim Levin for summary judgment on November 13, could bring under those statutes. Second, 2009. Judge Chang held that the Individual Defendants were not entitled to qualified The district court ruled on the five pending immunity on Levin's § 1983 claim for age motions in two separate opinions, both of discrimination. Rejecting Judge Coar's which are pertinent to the issues before this reasoning, Judge Chang noted that “[w]hen court. In the first opinion, decided March 10, determining whether qualified immunity 2010, the Honorable David H. Coar applies to protect a defendant, the question addressed the three pending motions to is whether a reasonable official would have dismiss. Levin I. Relevant to this appeal, known that the official was violating a Judge Coar granted the Individual clearly established constitutional right, Defendants' motion to dismiss Levin's § which is a substantive question, not a 1983 equal protection claim for age question concerning whether a particular

136 procedural vehicle (i.e., cause of action) is remedy under § 1983 is directly implicated available.” Because it is clearly established by a qualified immunity defense such that that the Fourteenth Amendment forbids we have jurisdiction over this appeal. Thus, arbitrary age discrimination, Judge Chang we first consider whether the ADEA held that qualified immunity did not apply precludes a § 1983 equal protection claim and Levin had established a genuine issue of before we turn to the issue of qualified material fact such that his § 1983 age immunity. discrimination claim could proceed to trial. The Individual Defendants filed this B. General Preclusion of § 1983 Claims timely appeal, asking this court to find that Section 1 of the Civil Rights Act of 1871, they are entitled to qualified immunity codified as 42 U.S.C. § 1983, “authorizes because the ADEA is the exclusive remedy suits to enforce individual rights under for Levin's age discrimination claims. federal statutes as well as the Constitution” II. ANALYSIS against state and local government A. Appellate Jurisdiction officials. Section 1983 does not create substantive rights, but operates as “a means Levin does not dispute that we have for vindicating federal rights conferred jurisdiction over an order denying qualified elsewhere.” immunity under the collateral order doctrine. But Levin believes this court In evaluating the limits of relief available lacks jurisdiction over the issue of whether under § 1983 for statutory claims, the the ADEA precludes a § 1983 equal Supreme Court has held that “[w]hen the protection claim. Levin asserts that this remedial devices provided in a particular issue, resolved in Judge Coar's opinion, is Act are sufficiently comprehensive, they not inextricably intertwined with Judge may suffice to demonstrate congressional Chang's denial of qualified immunity. intent to preclude the remedy of suits under § 1983.” In Sea Clammers, the We disagree with Levin's analysis. Instead, Supreme Court held that a suit for damages we believe this case is analogous to Wilkie v. under the Federal Water Pollution Control Robbins. In Wilkie, on an interlocutory Act (“FWPCA”) or Marine Protection, appeal of the denial of qualified immunity, Research, and Sanctuaries Act of 1972 the Supreme Court considered whether a (“MPRSA”) could not be brought pursuant new, freestanding damages remedy should to § 1983because both Acts “provide quite exist under Bivens. The Supreme Court held comprehensive enforcement that it had jurisdiction to consider whether mechanisms.” These mechanisms include such a remedy existed because the citizen-suit provisions, which allow private recognition of an entire cause of action is citizens to sue for prospective relief, and “directly implicated by the defense of notice provisions requiring such plaintiffs to qualified immunity.” Similar to Wilkie, the notify the EPA, the State, and the alleged very existence of a freestanding damages violator before filing suit.

137 Over two decades after Sea Clammers, the provisions limit the relief available to Supreme Court again rejected a plaintiff's private individuals and provide for attempt to seek damages under § 1983 for expedited judicial review, the Court held violation of a statute which provided its that the TCA precludes relief under § 1983. own, more restrictive judicial remedy. In Rancho Palos Verdes, the While the plaintiffs in Sea plaintiff filed suit for injunctive relief under Clammers and Rancho Palos Verdes sought the Telecommunications Act of 1996 to assert federal statutory rights under § (“TCA”) and sought damages and attorney's 1983, two other Supreme Court cases have fees under § 1983 after a city planning examined whether a plaintiff is precluded committee denied his request for a from asserting constitutional rights under § conditional-use permit for an antenna tower 1983 when a remedial statutory scheme also on his property. The TCA “imposes specific exists. In Smith v. Robinson, the Supreme limitations on the traditional authority of Court held that Congress intended the state and local governments to regulate the Education of the Handicapped Act (“EHA”), location, construction, and modification of “to be the exclusive avenue through which a [wireless communications] plaintiff may assert an equal protection facilities.” When a permit is requested and claim to a publicly financed special denied, the TCA requires local governments education.” The EHA was designed to “aid to provide a written decision, supported by the States in complying with their substantial evidence, within a reasonable constitutional obligations to provide public period of time. An individual may seek education for handicapped children.” The judicial review within thirty days of this Act established “an enforceable substantive decision, and the court is required to hear right to a free appropriate public education” and decide the case on an expedited and “an elaborate procedural mechanism to basis. Further, a plaintiff may not be entitled protect the rights of handicapped to compensatory damages and cannot children.” Under the EHA, plaintiffs were recover attorney's fees and costs. entitled to a fair and adequate state hearing, detailed procedural safeguards, and judicial In discerning congressional intent, the Court review. Relying on the comprehensive held that “[t]he provision of an express, statutory scheme and legislative history, the private means of redress in the statute itself Supreme Court held that Congress did not is ordinarily an indication that Congress did intend to allow a handicapped child to not intend to leave open a more expansive bypass the EHA and go directly to court remedy under § 1983.” Conversely, the with a § 1983 equal protection claim as Court noted that “in all of the cases in which “such a result [would] render superfluous we have held that § 1983 is available for most of the detailed procedural protections violation of a federal statute, we have in the statute.” emphasized that the statute at issue ... did not provide a private judicial remedy ... for In Preiser v. Rodriguez, the Supreme Court the rights violated.” Because the TCA's considered whether state prisoners deprived

138 of good-time credits could pursue their In cases in which the § 1983 claim claims for equitable relief under § 1983 or if alleges a constitutional violation, lack of such a remedy was unavailable because of congressional intent may be inferred from a comparison of the rights and the habeas corpus statutes. The Supreme protections of the statute and those Court discussed the history of habeas corpus existing under the Constitution. Where and recognized that “over the years, the writ the contours of such rights and of habeas corpus evolved as a remedy protections diverge in significant ways, available to effect discharge from any it is not likely that Congress intended to confinement contrary to the Constitution or displace § 1983suits enforcing fundamental law.” Procedurally, the writ constitutional rights. Our conclusions regarding congressional intent can be requires a prisoner to exhaust his adequate confirmed by a statute's context. state remedies prior to seeking federal judicial relief. The Court held that Congress The Court also recognized that, in its prior intended habeas corpus to be the sole opinions finding preclusion, the statutes at remedy, as “[i]t would wholly frustrate issue required plaintiffs to exhaust their explicit congressional intent to hold that the administrative remedies or comply with respondents in the present case could evade other procedural requirements before filing this requirement by the simple expedient of suit. “Offering plaintiffs a direct route to putting a different label on their pleadings.” court via § 1983 would have circumvented these procedures and given plaintiffs access Although we have highlighted the four to tangible benefits—such as damages, opinions in Sea Clammers, Rancho Palos attorney's fees, and costs—that were Verdes, Smith, and Preiser, each of which unavailable under the statutes.” found a § 1983 claim precluded, the Supreme Court does not “lightly conclude Turning to the statute before it, the Supreme that Congress intended to preclude reliance Court examined Title IX's remedial scheme on § 1983 as a remedy” for the deprivation and determined that Title IX does not of a federal right. In fact, the Court has preclude a § 1983 equal protection claim. rejected § 1983preclusion arguments in Title IX prohibits discrimination on the basis several other cases. of gender in educational programs that receive federal financial assistance. Two Most recently, the Supreme Court enforcement mechanisms exist: (1) “an considered whether Title IX of the administrative procedure resulting in the Education Amendments of 1972, 20 U.S.C. withdrawal of federal funding from § 1681(a), precludes a § 1983 equal institutions that are not in compliance” and protection claim. The Court first (2) an implied private right of action, acknowledged the importance of discerning through which a plaintiff may seek congressional intent and summarized its injunctive relief and recover damages. A prior rulings, stating: plaintiff suing under Title IX is not required to exhaust any administrative remedies or provide notice before filing suit; instead,

139 “plaintiffs can file directly in court and can statute and legislative history, the statute's obtain the full range of remedies.” Further, context, the nature and extent of the Congress failed to include an express private remedial scheme, and a comparison of the right remedy, and the Court “has never held rights and protections afforded by the that an implied right of action had the effect statutory scheme versus a § 1983 claim. A of precluding suit under § 1983, likely statutory scheme may preclude a § because of the difficulty of discerning 1983 constitutional claim, especially if a § congressional intent in such a situation.” 1983 claim circumvents the statute's carefully tailored scheme and provides The Court also emphasized the differences access to benefits unavailable under that between the protections guaranteed by Title scheme. Keeping these concepts in mind, we IX and the Equal Protection Clause. First, now turn to the issue before us: whether the Title IX permits a plaintiff to sue institutions ADEA precludes a § 1983 equal protection and programs receiving federal funding, but claim. does not authorize suit against school officials, teachers, or other individuals. In C. ADEA Preclusion of § 1983 Claims contrast, § 1983 equal protection claims reach state actors, including individuals, Congress enacted the ADEA “to promote municipalities, and other state entities. employment of older persons based on their Second, some policies that are exempted ability rather than age; to prohibit arbitrary under Title IX could still be subject to age discrimination in employment; [and] to claims under the Equal Protection Clause. help employers and workers find ways of Finally, the Court noted that “the standards meeting problems arising from the impact of for establishing liability may not be wholly age on employment.” The ADEA makes it congruent.” For example, a Title IX plaintiff unlawful for an employer to “to fail or may only have to show that a school refuse to hire or to discharge any individual administrator acted with deliberate or otherwise discriminate against any indifference while a § 1983 plaintiff must individual ... because of such individual's demonstrate the existence of a municipal age.” In general, the ADEA provides custom, policy, or practice. Because of these coverage for private, state, and federal differences and the absence of a employees who are forty years of age and comprehensive remedial scheme, the older, albeit with a few notable plaintiffs' § 1983 equal protection claim was exceptions. The Act “incorporates some not precluded. features of both Title VII and the Fair Labor Standards Act of 1938 [FLSA], which has We conclude from these cases that, in led [the Supreme Court] to describe it as determining whether a § 1983 equal ‘something of a hybrid.’ ” Specifically, the protection claim is precluded by a statutory substantive provisions of the ADEA are scheme, the most important consideration is modeled after Title VII, while its remedial congressional intent. Congressional intent provisions incorporate provisions of the may be construed from the language of the FLSA.

140 The ADEA expressly grants individual in other circuits, however, are split on the employees a private right of action. An issue. In the present case, two district court ADEA plaintiff must first file a charge with judges from the Northern District of Illinois the Equal Employment Opportunity held that the ADEA does not preclude a § Commission (EEOC), generally within 180 1983 equal protection claim. days of the unlawful age discrimination. The EEOC then notifies all In Zombro, the Fourth Circuit held that parties involved and, if the EEOC believes allowing a plaintiff to seek recovery for age there has been a violation, the agency discrimination through a § 1983 equal “promptly seek[s] to eliminate any alleged protection claim would undermine the unlawful practice by informal methods of comprehensive remedial scheme set forth in conciliation, conference, and persuasion.” If the ADEA. Citing the ADEA's provisions the EEOC charge is dismissed or terminated, requiring notice to the EEOC, informal the EEOC is required to notify the plaintiff. conciliation, and termination of a plaintiff's action upon the filing of a complaint by the Sixty days after filing an EEOC charge, a EEOC, the court believed that if a plaintiff plaintiff is entitled to file a civil lawsuit and, could pursue a § 1983 action instead, “[t]he if he seeks damages, receive a trial by jury. plaintiff would have direct and immediate This right terminates, however, if the EEOC access to the federal courts, the files its own lawsuit to enforce the plaintiff's comprehensive administrative process claim. “When confronted with a violation would be bypassed, and the goal of of the ADEA, a district court is authorized compliance through mediation would be to afford relief by means of reinstatement, discarded.” Where Congress has enacted a backpay, injunctive relief, declaratory comprehensive statutory scheme, such as the judgment, and attorney's fees.” If a ADEA, the Fourth Circuit holds that violation was willful, a plaintiff may recover preclusion of § 1983 suits is appropriate liquidated damages. “The Act also gives “unless the legislative history of the federal courts the discretion to ‘grant such comprehensive statutory scheme in question legal or equitable relief as may be manifests a congressional intent to allow an appropriate to effectuate the purposes of [the individual to pursue independently rights Act].’ ” under both the comprehensive statutory scheme and other applicable state and Whether the ADEA precludes a § federal statutes, such as 42 U.S.C. § 1983 equal protection claim is a matter of 1983.” The Fourth Circuit found no such first impression in the Seventh Circuit. All intent in the language and history of the other circuit courts to consider the issue ADEA. That court also relied upon the have held that the ADEA is the exclusive ADEA's adoption of Section 216 of the remedy for age discrimination claims, FLSA, which has been held to be “the sole largely relying on the Fourth Circuit's remedy available to the employee for reasoning in Zombro v. Baltimore City enforcement of whatever rights he may have Police Department. District courts located under the FLSA.” To the court, this shared

141 provision, along with the ADEA's precisely Nothing in the text of the ADEA expressly drawn statutory scheme, evidenced precludes a § 1983 claim or addresses congressional intent that the ADEA be the constitutional rights. Nor does the exclusive remedy for age discrimination legislative history provide clear guidance on suits. this issue. Although the Zombro court interpreted this lack of explicit language or Several circuit courts addressing ADEA legislative history as congressional intent preclusion have simply relied not to allow individuals to pursue on Zombro's holding. But not all district constitutional rights outside of the ADEA's court judges are convinced. The leading scheme, we reach the opposite conclusion. district court case rejecting ADEA Congress's silence on the issue tells us preclusion of § 1983 equal protection claims nothing about preclusion—we do not know is Mummelthie v. City of Mason City, Iowa. whether Congress even considered In that case, Judge Bennett sharply criticized alternative constitutional remedies in the Fourth Circuit's analysis enacting the ADEA. in Zombro, noting that the court failed to consider the statutory language and We agree with the Zombro majority that the legislative history of the ADEA, as well as ADEA sets forth a rather comprehensive its similarities to Title VII, a statutory remedial scheme. The ADEA provides a scheme which does not preclude § private right of action, requires notice and 1983claims. exhaustion of remedies, and limits the damages available under the Act. Like Sea Given the conflicting case law, further Clammers and Rancho Palos Verdes, this review of this issue is required. Although the scheme speaks volumes as to how Congress ADEA enacts a comprehensive statutory intended allegations of statutory age scheme for enforcement of its own statutory discrimination to proceed. rights, akin to Sea Clammers and Rancho Palos Verdes, we find that it does not But, as to constitutional claims, we do not preclude a § 1983 claim for constitutional believe Congress's intent is as apparent as rights. While admittedly a close call, other circuit courts have found. As noted in especially in light of the conflicting Mummelthie, “the ADEA does not purport decisions from our sister circuits, we base to provide a remedy for violation of federal our holding on the ADEA's lack of constitutional rights” and no express legislative history or statutory language language indicates that Congress intended to precluding constitutional claims, and the foreclose relief under § 1983 for divergent rights and protections afforded by constitutional violations. Beyond that, we the ADEA as compared to a § 1983 equal have a hard time concluding that Congress's protection claim. mere creation of a statutory scheme for age discrimination claims was intended to 1. Statutory Text and Legislative History foreclose preexisting constitutional claims. Congress frequently enacts new legal

142 remedies that are not intended to repeal their believe more is required than a predecessors. Accordingly, the Supreme comprehensive statutory scheme. This Court has emphasized on several occasions notion is supported by the Supreme Court's that “repeals by implication are not favored references in Smith to the legislative history and will not be presumed unless the of the EHA. Thus, in Smith, it was more intention of the legislature to repeal is clear than just the comprehensive remedial and manifest.” scheme that convinced the Court that the EHA is an exclusive remedy. In this What, then, do we make of the Supreme way, Smith differs from Sea Court's holdings in Smith and Preiser, which Clammers and Rancho Palos Verdes, cases held that constitutional claims were barred tasked only with determining whether § by the existence of comprehensive statutory 1983 statutory claims were precluded by that schemes? In both of those cases, the statutes statute's own comprehensive scheme. In at issue were specifically designed to sum, even though the ADEA is a address constitutional issues. For instance, comprehensive remedial scheme, without the habeas corpus statutes in Preiser provide some additional indication of congressional a remedy for prisoners “in custody in intent, we cannot say that the ADEA's violation of the Constitution or laws or scheme alone is enough to preclude § 1983 treaties of the United States. Similarly, constitutional claims. the Smith court acknowledged that “[t]he EHA is a comprehensive scheme set up by The Ninth Circuit's Congress to aid the States in complying recent Ahlmeyer decision raises one with their constitutional obligations to additional point on this issue that provide public education for handicapped necessitates discussion, as the court relied children.” The statute itself provides that upon our prior precedent. As background, federal intervention is necessary to “ensure because age is not a suspect classification, equal protection of the law.” This goal is an equal protection claim of age also referenced in the legislative history, as discrimination in employment is subject recognized in Smith. These references only to rational basis review, in which the demonstrate that Congress considered age classification must be rationally related alternative constitutional remedies in to a legitimate state interest. In contrast, the enacting the EHA. ADEA “prohibits substantially more state employment decisions and practices than The ADEA is readily distinguishable. “In would likely be held unconstitutional under contrast to the statutes at issue the applicable equal protection, rational in Preiser and in Smith, the ADEA does not basis standard.” Thus, the Ahlmeyer decision purport to provide a remedy for violation of notes in its opinion that “[b]ecause the constitutional rights. Instead, it provides a ADEA provides broader protection than the mechanism to enforce only the substantive Constitution, a plaintiff has ‘nothing rights created by the ADEA itself.” For the substantive to gain’ by also asserting a § preclusion of constitutional claims, we 1983 claim.”

143 In Williams, we briefly discussed the Thus, cases addressing FLSA exclusivity plaintiffs' failure to differentiate their Title speak little to the issue presently before this VI and equal protection claims. Citing Sea court. We have no quarrel with the notion Clammers, we noted that “[w]hen Congress that the FLSA is the sole remedy for the enacts a comprehensive scheme for enforcement of FLSA rights and, similarly, enforcing a statutory right that is identical to the ADEA is the sole remedy for the a right enforceable under 42 U.S.C. § 1983, enforcement of ADEA rights. Even the ... the section 1983 lawsuit must be litigated district courts that believe the ADEA does in accordance with the scheme.” We then not preclude § 1983 constitutional claims recognized that, according to the Supreme agree on this point. Because the FLSA lacks Court, Title VI proscribes only those racial a constitutional counterpart, it provides little classifications that violate the Equal additional guidance beyond the statutory Protection Clause. Thus, there was nothing text. to gain by asserting an equal protection claim, and failure to comply with Title VI's 2. Comparison of Rights and Protections procedural requirements would have left the Given the absence of any clear or manifest plaintiffs without a remedy. But again, congressional intent in either the language of like Smith, Title VI's legislative history the statute or the legislative history, provides insight into Congress's intent. In Fitzgerald directs us to compare the rights light of this clear congressional intent, and protections afforded by the statute and Williams (like Smith ) is also distinguishable the Constitution. We believe the rights and from the ADEA. And while we freely protections afforded by the ADEA and § acknowledge that the ADEA's heightened 1983 equal protection claims diverge in a scrutiny provides a stronger mechanism for few significant ways. plaintiffs to challenge age discrimination in employment, absent any additional First, an ADEA plaintiff may only sue his indication from Congress, we simply cannot employer, an employment agency, or a labor infer that Congress intended to do away with organization. In contrast, a § 1983 plaintiff a § 1983 constitutional alternative. may file suit against an individual, so long as that individual caused or participated in Finally, the circuit courts rely upon the alleged deprivation of the plaintiff's Congress's incorporation of the FLSA's constitutional rights. A § 1983 plaintiff may remedial scheme in finding that Congress also sue a governmental organization, but intended to preclude a § 1983 constitutional only if he can demonstrate that the alleged remedy. This is a perplexing argument constitutional violation was “caused by (1) because the cases which have found the an express municipal policy; (2) a FLSA to be an exclusive remedy do not widespread, though unwritten, custom or (and, in fact, cannot) address constitutional practice; or (3) a decision by a municipal claims. Unlike Title VII and the ADEA, the agent with final policymaking rights created by the FLSA are not based on authority.” These divergent rights between rights also guaranteed by the Constitution.

144 the ADEA and a § 1983 constitutional claim We review a district court's denial of seriously affect a plaintiff's choice of summary judgment based on qualified defendants and his strategy for presenting a immunity de novo. To determine whether prima facie case. state actors are entitled to qualified immunity, we consider “(1) whether the Second, the ADEA expressly limits or facts, taken in the light most favorable to the exempts claims by certain individuals, plaintiffs, show that the defendants violated including elected officials and certain a constitutional right; and (2) whether that members of their staff, appointees, law constitutional right was clearly established enforcement officers, and firefighters. The at the time of the alleged statutory scheme also prohibits claims by violation.” Beyond asserting that the ADEA employees under the age of forty or those precludes a § 1983 claim, the Individual bringing so-called “reverse age Defendants do not challenge the first prong discrimination” claims. There are no such on appeal. Thus, for our purposes, we need limitations for § 1983 equal protection only briefly discuss the second prong of the claims. qualified immunity analysis.

Finally, as a practical matter in light of the “A right is clearly established when, at the Supreme Court's decision in Kimel, state time of the challenged conduct, the contours employees suing under the ADEA are left of a right are sufficiently clear that every without a damages remedy, as such claims reasonable official would have understood are barred by Eleventh Amendment that what he is doing violates that right.” sovereign immunity. In contrast, Judge Coar's opinion granted qualified “[m]unicipalities do not enjoy any kind of immunity as to Levin's § 1983 equal immunity from suits for damages under § protection claim, finding that “whether the 1983.” Without the availability of a § Seventh Circuit permits equal protection 1983 claim, a state employee (like Levin) claims for age discrimination in light of the who suffers age discrimination in the course ADEA is unclear.” Accordingly, Judge Coar of his employment is left without a federal believed that the constitutional right was not damages remedy. clearly established and qualified immunity was appropriate. On reconsideration, Judge In light of our analysis of the ADEA and the Chang reversed Judge Coar's ruling, noting relevant case law, and given these divergent that “irrational age discrimination is clearly rights and protections, we conclude that the forbidden by the Equal Protection Clause” ADEA is not the exclusive remedy for age and the issue of qualified immunity is “not a discrimination in employment claims. question concerning whether a particular D. Qualified Immunity procedural vehicle (i.e., cause of action) is available.” Because the ADEA does not preclude Levin's § 1983 equal protection claim, we We agree with Judge Chang. At the time of now turn to the issue of qualified immunity. the alleged wrongdoing, it was clearly

145 established that age discrimination in the fact that Congress created a statutory employment violates the Equal Protection remedy for age discrimination that is Clause. Although age is not a suspect substantively broader than the equal classification, states may not discriminate on protection clause.” Because Levin's that basis if such discrimination is not constitutional right was clearly established, “rationally related to a legitimate state the Individual Defendants are not entitled to interest.” Whether or not the ADEA is the qualified immunity. exclusive remedy for plaintiffs suffering age discrimination in employment is irrelevant, III. CONCLUSION and as Judge Chang noted, it is “odd to For the foregoing reasons, we AFFIRM the apply qualified immunity in the context judgment of the district court. where the procedural uncertainty arises from

146 “U.S. Supreme Court to Consider Application of ADEA to State and Local Workers”

Lexology Jennifer Cerven April 2, 2013

The U.S. Supreme Court has agreed to hear claims under the Constitution’s Equal an appeal from Illinois Attorney General Protection Clause and 42 U.S.C. 1`983. Lisa Madigan on the issue of whether state and local government employees can bypass In the petitioner’s brief asking the Supreme the Age Discrimination in Employment Act Court to grant certiorari, Madigan noted the and sue for age discrimination under an circuit split and argued that if the Seventh equal protection theory. The case Circuit’s ruling were to stand, there would is Madigan v. Levin, Docket Number 12- be about one million state and local workers 872. in Illinois, Indiana, and Wisconsin who would be able to bypass the ADEA’s Appellate courts are split on whether the administrative dispute resolution process at ADEA is the exclusive route for state and the EEOC and go straight to court. Madigan local government employees to bring a argued that this would undercut the ADEA claim for age discrimination, or whether an and would deprive state and local equal protection claim via Section 1983 is governments of prompt notice of claims. available. The Seventh Circuit Court of Appeals decided that the Plaintiff, a former The outcome of the case will be important Assistant Attorney General, could go not only for state and municipal employers, forward with a Section 1983 age but also for individual employees. As a discrimination claim against certain practical matter, the plaintiff could end up defendants (including Madigan) in their with no further opportunity for an age individual capacity. The Seventh Circuit discrimination claim if the Supreme Court decided that the ADEA does not preclude a decides that the ADEA forecloses age Section 1983 claim, but acknowledged that claims under Section 1983. That is because its decision was contrary to rulings in other the lower court decided that the employee circuits holding that the ADEA is the fell under the ADEA exclusion of policy- exclusive remedy for age discrimination making level employees, 29 U.S.C. claims. §630(f). Moreover, sovereign immunity applies to protect states from individual suits The question presented to the Supreme for monetary damages under the ADEA, Court is whether the Seventh Circuit erred in under Supreme Court precedent in Kimel v. holding that state and local government Florida Board of Regents, 528 U.S. 62. employees may avoid the ADEA’s remedial regime by bringing age discrimination

147 The case is likely to proceed to briefing during the current term and may be scheduled for argument in the fall term.

148 “Supreme Court to Take on Age Discrimination: Madigan v. Levin”

Constitutional Law Reporter Donald Scarinci March 28, 2013

Now that the same-sex marriage oral ADEA displaced all other remedies for age arguments are in the rear view, it is time to discrimination claims. focus on the remainder of the 2013 term. While the remaining cases may not be as The Seventh Circuit Court of Appeals groundbreaking, there are a number of disagreed, holding that the ADEA does not significant constitutional issues for the preclude equal protection claims. Supreme Court to tackle. Accordingly, it denied the individual defendants qualified immunity. For instance, the justices recently agreed to take on age discrimination, one of the most The Issues Before the Court common types of employment lawsuits. The specific issue before the Court is whether The Supreme Court likely agreed to hear the state and local government employees can case because the circuit courts have reached avoid the federal Age Discrimination in divergent results when asked to consider this Employment Act (ADEA) by bringing age issue. They are currently split 4-1, with the discrimination claims directly under the Seventh Circuit departing from the others. Equal Protection Clause. Section 1 of the Civil Rights Act of 1871, The Facts of the Case codified as 42 U.S.C. § 1983, “authorizes Harvey N. Levin was terminated from his suits to enforce individual rights under federal statutes as well as the Constitution” position as an Illinois Assistant Attorney General at the age of 61. After the office against state and local government officials. replaced him with a younger lawyer, Levin However, in evaluating the limits of relief filed a lawsuit alleging that his termination available under § 1983 for statutory claims, the Supreme Court has held that “[w]hen the not only violated the ADEA, but also the equal protection guarantee of the Fourteenth remedial devices provided in a particular Act are sufficiently comprehensive, they Amendment. may suffice to demonstrate congressional The defendants, who included the State of intent to preclude the remedy of suits under Illinois, the Office of the Illinois Attorney § 1983.” General, Illinois Attorney General Lisa Madigan (in both her individual and official Thus, the key question before the Court will capacity), and four other individual state be whether Congress intended to limit other employees, sought to dismiss the remedies when including state and federal Constitutional claim. They argued that the employees under the protection of the

149 ADEA, a determination the Supreme Court generally does not take lightly.

150 “Harvey Levin v. Lisa Madigan, Seventh Circuit Court of Appeals Decision”

JD Supra Edward Theobald August 17, 2012

The U.S. Court of Appeals for the Seventh time of the alleged violation "it was clearly Circuit has ruled that Illinois Attorney established that age discrimination in General Lisa Madigan and supervisors of the employment violates the Equal Protection Attorney General’s Office are not entitled to Clause," he wrote. "Because Levin's qualified immunity from an Equal constitutional right was clearly established, Protection § 1983 Age Discrimination claim the Individual Defendants are not entitled to brought by Harvey Levin, a former Senior qualified immunity." Assistant Attorney General. Harvey Levin was 55 years old in A three-judge panel acknowledged that its September 2000, when he became an decision ran counter to rulings by six other assistant attorney general in the Illinois circuits that the Age Discrimination in Attorney General’s consumer fraud bureau. Employment Act (ADEA) precludes age Two years later, Illinois Attorney General discrimination claims under the Equal James Ryan promoted Mr. Levin to a senior Protection Clause and 42 U.S.C. § 1983. assistant attorney general. In May of 2006, The Seventh Circuit voted unanimously on the new Illinois Attorney General, Lisa August 17, 2012 to affirm Northern District Madigan, terminated Mr. Levin despite his of Illinois Judge Edmond Chang's July 2011 consistent written performance evaluations judgment in Levin v. Madigan. Judge that met or exceeded the Attorney General’s Michael Kanne wrote the opinion, joined by expectations in a dozen job categories. Mr. Judges William Bauer and Richard Posner Levin was one of three consumer fraud citing “the ADEA's lack of legislative bureau lawyers who were discharged and history or statutory language precluding replaced with younger attorneys; Levin's constitutional claims, and the divergent replacement was a woman in her 30’s. rights and protections afforded by the ADEA as compared to a § 1983 equal U.S. District Court Judge Edmond E. Chang protection claim." has scheduled the jury trial on Harvey Levin’s age and sex discrimination in "In light of our analysis of the ADEA and employment complaint for May 6, 2013 in the relevant case law, and given these the U.S. District Courthouse, 219 S. divergent rights and protections, we Dearborn Street, Room 1403, , conclude that the ADEA is not the exclusive Illinois 60604. remedy for age discrimination in employment claims," Judge Kanne concluded. As for qualified immunity, at the

151 “High Court To Mull Circuit Split On Gov't Worker ADEA Claims”

Law 360 Bill Donahue March 18, 2013

The U.S. Supreme Court on Monday agreed August had exacerbated an already- to weigh in on a circuit split over whether confusing divide among lower courts over state and local government employees can whether the ADEA precludes constitutional directly sue for age discrimination under the age bias claims. equal protection clause rather than follow the out-of-court procedures of the Age “This petition raises an important and Discrimination in Employment Act. frequently recurring question over which of the lower federal courts are hopelessly The high court will review a Seventh Circuit divided,” the petition said. “The Seventh ruling that state workers were allowed to Circuit acknowledged that its holding ... bring age discrimination claims under the created a split with the rule in several other 14th Amendment. Other circuits have said circuits [and] this court’s intervention is just the opposite — that the ADEA is the needed to reconcile this growing, nationwide exclusive remedy for claims of age-based split in authority.” bias and that it forecloses constitutional allegations. As Madigan explained in her petition, the Fourth, Fifth, Ninth and Tenth Circuits have The case is significant for government all ruled that Congress made the ADEA the employers because the ADEA mandates that exclusive statutory vehicle for alleged age workers file claims with the U.S. Equal bias. Those courts have rejected efforts to Employment Opportunity Commission and sue under 42 USC § 1983 — the rule for take other administrative steps before filing deprivation of constitutional or other legal a complaint. If employees can sue for rights — as precluded by the ADEA. constitutional violations, they can bypass all of that. And in other appeals court jurisdictions that haven't addressed the issue, like the Second, As is customary, the court didn't indicate Third, Sixth, Eighth and Eleventh Circuits, why it chose to take the case, and Illinois district judges have ruled both ways, further Attorney General Lisa Madigan — who muddling the situation, the petition argued. filed the petition for writ of certorari — didn't immediately return a request for Madigan pushed the high court to come comment Monday. down on the side of the courts that have upheld the exclusivity of the ADEA, saying Madigan filed her petition in January, that the Seventh's contrary view was arguing that the Seventh Circuit's ruling in detrimental to the “proper functioning of the

152 comprehensive scheme that Congress has ADEA and the 14th Amendment, via 42 carefully crafted for resolving employment USC § 1983. disputes.” When Illinois and Madigan moved to “Congress decided that these disputes, dismiss the constitutional claims because specifically, should be resolved wherever they were foreclosed by the ADEA, the possible through prompt notice and informal judge sided with Levin. In August, the conciliation rather than litigation,” the Seventh Circuit affirmed that ruling, setting petition said. “The more than one million the stage for the Supreme Court to step in. state and local workers located in Illinois, Indiana and Wisconsin may [now] bypass An attorney for Levin didn't return a request the ADEA’s dispute resolution process and for comment Monday on the grant of go straight to court, undercutting the act as a certioari. means of securing voluntary compliance with federal age discrimination laws,” Madigan is represented by Illinois Solicitor Madigan argued. General Michael A. Scodro.

Former assistant Illinois attorney general Levin is represented by Edward Harvey N. Levin sued Madigan and her R. Theobald. office in 2007, claiming he had been fired due to his age — he was 55 when terminated The case is Madigan v. Levin, case number — and replaced by a female attorney in her 12-872, in the U.S. Supreme Court. thirties. He brought claims under both the

153 “Supreme Court Stops Use of Key Part of Voting Rights Act”

The Washington Post Robert Barnes June 25, 2013

A divided Supreme Court on Tuesday Alabama, Georgia, Louisiana, Mississippi, invalidated a crucial component of the South Carolina, Texas and Virginia, as well landmark Voting Rights Act of 1965, ruling as Alaska, Arizona and parts of seven other that Congress has not taken into account the states. It requires them to receive “pre- nation’s racial progress when singling out clearance” from the U.S. attorney general or certain states for federal oversight. federal judges before making any changes to election or voting laws. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the other conservative Roberts said the court had warned Congress members of the court in the majority. four years ago, in a separate case, that its decision to continue using a formula based The court did not strike down the law itself on “40-year-old facts” would lead to serious or the provision that calls for special constitutional questions. scrutiny of states with a history of discrimination. But it said Congress must “Congress could have updated the coverage come up with a new formula based on formula at that time, but did not do so,” current data to determine which states Roberts wrote. “Its failure to act leaves us should be subject to the requirements. today with no choice but to declare [the formula] unconstitutional.” Proponents of the law, which protects minority voting rights, called the ruling a He added, “Our country has changed, and death knell. It will be almost impossible for while any racial discrimination in voting is a Congress bitterly divided along partisan too much, Congress must ensure that the lines to come up with such an agreement, legislation it passes to remedy that problem they said. speaks to current conditions.”

There could be immediate consequences He was joined by Justices Antonin Scalia, from the court’s ruling. Just hours after the Anthony M. Kennedy, Clarence Thomas and ruling, Texas Attorney General Greg Abbott Samuel A. Alito Jr. said his state will move forward with a voter-identification law that had been One sign of racial progress has been the stopped by a panel of federal judges and will election of the nation’s first African carry out redistricting changes that had been American president, who said Tuesday that mired in court battles. he was “deeply disappointed” in the decision. The act covers the Southern states of

154 “For nearly 50 years, the Voting Rights Act “When confronting the most constitutionally . . . has helped secure the right to vote for invidious form of discrimination, and the millions of Americans,” President Obama most fundamental right in our democratic said in a statement. “Today’s decision system, Congress’ power to act is at its invalidating one of its core provisions upsets height,” Ginsburg wrote in her dissent. decades of well-established practices that help make sure voting is fair, especially in She noted that the 2006 extension of the places where voting discrimination has been Voting Rights Act, and the continued use of historically prevalent.” the formula in Section 4, was approved unanimously in the Senate and signed by In Virginia, the state government President George W. Bush. “What has presumably will no longer need approval become of the court’s usual restraint?” she from Washington for its new voter-ID law. asked from the bench. The law could still be subject to a legal challenge, but the burden would be shifted She invoked the Rev. Martin Luther King Jr. to plaintiffs to show that the law would hurt and the march from Selma to Montgomery. minority voters. “ ‘The arc of the moral universe is long,’ he said, ‘but it bends toward justice’ if there is Attorney General Eric H. Holder Jr., who a steadfast commitment to see the task called the decision a “serious setback for through to completion,” Ginsburg said. voting rights,” said his department will “That commitment has been disserved by “continue to carefully monitor jurisdictions today’s decision.” around the country for voting changes that may hamper voting rights.” She was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and “Let me be very clear,” Holder said. “We Elena Kagan. will not hesitate to take swift enforcement action, using every legal tool that remains Roberts, too, was ready with history lessons. available to us, against any jurisdiction that In his opinion, he noted that in 1965, white seeks to take advantage of the Supreme voter registration in Mississippi was nearly Court’s ruling by hindering eligible citizens’ 70 percent and black registration stood at full and free exercise of the franchise.” 6.7 percent. By 2004, a greater percentage of blacks than whites were registered to vote in Justice Ruth Bader Ginsburg emphasized the the state, and that was true in five of the six liberals’ disagreement with the decision by states originally covered by Section 5. reading her dissent from the bench. She said the majority not only misread the lessons of “These are the numbers that were before the nation’s racial progress but also inserted Congress when it reauthorized the act in itself into a decision that the Constitution’s 2006,” he said. Civil War amendments specifically leave for Roberts cited the deaths of men registering Congress. others to vote in Philadelphia, Miss., and

155 “Bloody Sunday” in Selma, Ala. “Today we should not soft-pedal what is an both of these towns are governed by egregious betrayal of minority voters,” said African-American mayors,” Roberts wrote. Sherrilyn Ifill, head of the NAACP Legal Yet the “extraordinary and unprecedented Defense Fund, whose lawyers participated in features” of Section 5, along with the the case. coverage formula, were reauthorized “as if nothing had changed.” In his opinion, Roberts noted that the decision “in no way affects the permanent, Ginsburg said that the longtime formula nationwide ban on racial discrimination in Congress decided to continue using still voting” found in another part of the Voting identified the areas most in need of federal Rights Act. And he said that “Congress may oversight. Between 1982 and 2006, she said, draft another formula based on current the Justice Department blocked more than conditions.” 700 voting changes on the grounds that they would be discriminatory. But there appeared to be little bipartisan appetite for that on Capitol Hill, and some She said the court’s ruling does not lawmakers said such an attempt would be accommodate the evidence Congress unsuccessful. amassed to justify reauthorization. “One would expect more from an opinion striking “As long as Republicans have a majority in at the heart of the nation’s signal piece of the House and Democrats don’t have 60 civil rights legislation,” Ginsburg wrote. votes in the Senate, there will be no pre- clearance,” said Sen. Charles E. Schumer Roberts countered: “Congress did not use (D-N.Y.). “It is confounding that after the record it compiled to shape a coverage decades of progress on voting rights, which formula grounded in current conditions. It have become part of the American fabric, instead reenacted a formula based on 40- the Supreme Court would tear it asunder,” year-old facts having no logical relation to Schumer added. the present day.” The specific challenge before the court came Reaction to the ruling was impassioned. from Shelby County, Ala., a fast-growing, mostly white suburb south of Birmingham. , who coordinated the current challenge to Section 5 and a previous one in A brief filed by the state of Alabama said 2009, said the decision “restores an bloody resistance to ’ important constitutional order to our system voting rights was “particularly responsible” of government which requires that all 50 for making Section 5 necessary. states are entitled to equal dignity and sovereignty. Our nation’s laws must apply The state’s attorney general, Luther Strange, uniformly to each state and jurisdiction.” said in the brief that Alabama had a well- earned place among the covered Civil rights groups were outraged. “I think jurisdictions when the act was passed in

156 1965 and reauthorized in 1970, 1975 and covered jurisdictions to resume their roles as 1982. But the 2006 reauthorization, which equal and sovereign parts of these United extended federal control for an additional 25 States,” the brief said. years, went too far, he said. The case is Shelby County v. Holder. “It is time for Alabama and the other

157 “U.S. Chief Justice Realizes Longstanding Vision in Voting-Rights Case”

Reuters Joan Biskupic June 25, 2013

For an often enigmatic figure at the U.S. fifth vote to uphold the healthcare overhaul Supreme Court, Chief Justice John Roberts sponsored by President Barack Obama. But spoke to the essence of his legal philosophy some legal analysts observed that such a on Tuesday in eliminating a voting-rights case, testing federal commerce and taxing provision enacted to protect blacks and other power, did not touch on his long-held minorities. conservative priorities.

His opinion for the court marks the When Roberts served as a lawyer in the culmination of an effort by conservatives, Reagan administration, he sought to curtail many of whom, like Roberts, cut their teeth government's use of racial remedies and in the Ronald Reagan administration, to specifically narrow the reach of the Voting ensure that federal voting requirements on Rights Act. In 1982, for example, Roberts the states be limited and race-based rules advised the president to oppose pending fade in contemporary America. legislation to enhance a section aimed at intentional voter discrimination. In a tenure-defining decision, the Roberts majority undercut a key section of the 1965 Roger Clegg, who worked with Roberts at Voting Rights Act that requires states with a the Justice Department in the 1980s, said history of racial discrimination to obtain Roberts, like other young Republican U.S. approval before changing election laws. lawyers, was inspired by a broad socially The court struck down the formula used to conservative agenda that included such determine which states were affected. Nine subjects as abortion, religion and race. mostly Southern states had been covered. "These were the big-ticket items back then," The decision was the most significant racial said Clegg, now president of the Center for ruling since Roberts, 58, became chief Equal Opportunity, a conservative think justice in 2005. Announced on the next-to- tank. Clegg added that he did not think last day of term, Shelby County v. Holder Roberts, who grew up in Indiana and was was one of the most awaited of the current educated at Harvard, was motivated in his session and as Roberts spoke from the quest for race-neutral policies by especially bench, the hushed courtroom felt quieter Southern sympathies. than usual. "This is not driven by the fact that his great, CONSERVATIVE PRIORITIES great grandfather was with (Confederate General Robert E.) Lee at Appomattox," Last year at this time, Roberts defied many said Clegg, referring to one of the final people's expectations when he provided the

158 battles of the Civil War. "It's from his belief 1960s and early 1970s, despite the gains in in federalism," that is, a limit on what voting equality since then. Voicing irritation Congress may constitutionally impose on that lawmakers had not acted on the court's the states. warning in 2009 to revise the formula used to determine which states were covered, Once he joined the high court, as an Roberts said it had no choice but to strike it appointee of Republican President George down. W. Bush, Roberts asserted his opposition to racial policies. In a 2006 case involving the As he wrote about the changes across the drawing of "majority minority" voting country in recent decades, the chief justice districts to boost the political power of noted that voter registration rates for blacks blacks and Latinos, Roberts referred to "this and whites now approach parity and blatant sordid business divvying us up by race." In a discrimination is rare. 2007 dispute over school integration plans, Roberts wrote, "The way to stop "Our country has changed, and while any discrimination on the basis of race is to stop racial discrimination in voting is too much, discriminating on the basis of race." Congress must ensure that the legislation it passes to remedy that problem speaks to In a 2009 case, in which the court ultimately current conditions," Roberts wrote, joined declined to review the constitutionality of by his four fellow conservatives. the key Voting Rights Act section, Roberts warned that the screening provision may no Justice Ruth Bader Ginsburg, speaking for longer be constitutional because "things the four liberal dissenters, said the states have changed in the South." targeted four decades ago still had the worst voting-rights violations. She invoked the He questioned why Congress would still words of slain civil rights leader Martin target Southern states when widespread Luther King, Jr.: " 'The arc of the moral blatant racial discrimination had ended. Can universe is long, he said, but ‘it bends members of Congress "impose this disparate toward justice,' if there is a steadfast treatment forever because of the history in commitment to see the task through to the South?" he asked during oral arguments completion. That commitment has been in the 2009 case. "When do they have to disserved by today's decision." stop?" In the cool marble courtroom on a scorching On Tuesday, Roberts provided an answer: June morning, Roberts was expressionless. Now. After decades of tension over the scope of voting rights, he had his majority. In his 24-page opinion for the court, Roberts criticized Congress for leaving in place the criteria for targeted states that traced to the

159 “U.S. Sues To Block Texas Law On Voter ID”

The Wall Street Journal Jess Bravin August 27, 2013

The Justice Department on Thursday sued suppress voting rights," Mr. Holder said in a Texas over the state's voter-identification statement. "This represents the department's law and said it would join an existing case latest action to protect voting rights, but it challenging congressional districts drawn by will not be our last." Austin's Republican-controlled legislature, alleging that both measures violate the 1965 Texas Gov. Rick Perry called the suit "an Voting Rights Act and constitutional effort to obstruct the will of the people of protections for minorities. Texas," adding, "We will continue to defend the integrity of our elections." The lawsuits come after the U.S. Supreme Court in June ended nearly a half-century of The Justice Department previously had direct federal supervision of election rejected the voter-ID law, a decision upheld practices in states that historically by a federal court in Washington. That discriminated against minority voters. The ruling was nullified by the Shelby County 5-to-4 decision found that historical data no ruling, which eliminated the formula that longer justified requiring Texas and other had placed Texas under the preclearance such states to obtain federal permission requirement. before changing election procedures. The Texas law requires voters to present one But the opinion left intact federal law of five forms of photo ID. A driver's license, authorizing voting-rights suits against state passport or concealed-handgun license and local election laws after they are issued by the state Department of Public enacted. It also allowed courts to impose Safety are among the accepted forms of ID, new "preclearance" requirements on while student cards aren't accepted. People jurisdictions found to discriminate against who can prove their eligibility to vote with a minority voters. birth certificate or other documents can obtain a special voter-identification card. The Obama administration had pledged to use those powers vigorously, and on The Justice Department said the law, signed Thursday Attorney General Eric Holder said by Mr. Perry in 2011, would disadvantage the Texas suits underscored that minority voters. For instance, the commitment. department said Hispanic registered voters are more than twice as likely as non- "We will not allow the Supreme Court's Hispanic registered voters to lack a driver's recent decision to be interpreted as open license. season for states to pursue measures that

160 The administration also said it would join voters, and is pending before a federal court the redistricting suit, which was filed in in San Antonio. 2011 by civil-rights organizations and Texas

161 “U.S. Asks Court to Limit Texas on Ballot Rules”

The New York Times Adam Liptak & Charlie Savage July 25, 2013

The Obama administration on Thursday Gov. Rick Perry of Texas cast Mr. Holder’s moved to protect minority voters after last remarks as an attempt by the Obama month’s Supreme Court ruling striking administration to weaken the state’s voter- down a central part of the Voting Rights Act integrity laws and said the comments of 1965, with the Justice Department asking demonstrated the administration’s “utter a court to require Texas to get permission contempt for our country’s system of checks from the federal government before making and balances.” changes. “This end run around the Supreme Court In a speech before the National Urban undermines the will of the people of Texas, League in Philadelphia, Attorney General and casts unfair aspersions on our state’s Eric H. Holder Jr. said the request would be common-sense efforts to preserve the the first of several legal salvos from the integrity of our elections process,” Mr. Perry administration in reaction to the Supreme said in a statement. Court’s decision. “My colleagues and I are determined to use every tool at our For years, Republicans across the nation disposal,” he said, “to stand against such have pushed for tougher voter identification discrimination wherever it is found.” laws, shorter voting hours and other measures they say are intended to reduce Last month’s ruling, Shelby County v. voter fraud. The efforts have intensified Holder, did away with a requirement that across the South, from Texas to North Texas and eight other states, mostly in the Carolina, after the Supreme Court’s ruling South, get permission from the Justice freed many states and localities from federal Department or a federal court before oversight. changing election procedures. On Thursday, the administration asked a federal court in Democrats have said the steps are intended Texas to restore that “preclearance” to reduce voting by minorities, students and requirement there, citing the state’s recent other heavily Democratic groups. history and relying on a different part of the State Representative Trey Martinez Fischer, voting rights law. Democrat of San Antonio, who is the Republicans harshly criticized the chairman of the Mexican-American announcement, in a sign that both parties Legislative Caucus, said racial view the battle over voting laws as discrimination in Texas was not a thing of important to future elections. the past.

162 “The fact that intervention in Texas is the government to get to largely the same place Department of Justice’s first action to by a different route, called “bail-in.” If the protect voting rights following the Shelby department can show that given jurisdictions County decision speaks volumes about the have committed constitutional violations, seriousness of Texas’ actions,” Mr. Fischer federal courts may impose federal oversight said. on those places in a piecemeal fashion.

“Texans should be proud that the resources Lawyers for minority groups have already of the federal government will be brought to asked a court in Texas to return the state to bear to protect the voting rights of all,” he federal oversight. The Justice Department’s added. action — filing a “statement of interest” in that case — will bring the weight of the President Obama mentioned his concern federal government behind those efforts. about voting problems — especially long waits at the ballot box — in both his victory Richard H. Pildes, a New York University speech on the night of his re-election and in professor who specializes in election law his second Inaugural Address. Several recent issues, said the move was “a dramatically polls and studies found that voters in heavily significant moment in the next phase of the Democratic areas face longer lines, although Voting Rights Act’s development” after the the reasons remain unclear. Supreme Court’s ruling.

The new move by the Justice Department “If this strategy works, it will become a way relies on a part of the Voting Rights Act that of partially updating the Voting Rights Act the Supreme Court left untouched in the through the courts,” he said. “The Justice Shelby County case. The court struck down Department is trying to get the courts to step the coverage formula in Section 4 of the into the role the Justice Department played law, which had identified places subject to before the Shelby County decision. The the preclearance requirement based on 40- Voting Rights Act has always permitted this, year-old data. The court suggested that in some circumstances, but this strategy Congress remained free to enact a new wasn’t used much. If this approach works, it coverage formula based on contemporary will help update the Voting Rights Act even data, but most analysts say that is unlikely. without Congressional action.”

Striking down the law’s coverage formula In his speech, Mr. Holder said that evidence effectively guts Section 5 of the law, which submitted to a court last year that the Texas requires permission from federal authorities Legislature had intentionally discriminated before covered jurisdictions may change against Hispanics when redrawing district voting procedures. lines was sufficient to reimpose on that state the “preclearance” safeguard. The court The move by the Justice Department on blocked the map, saying the parties had Thursday relies on a different part of the “provided more evidence of discriminatory law, Section 3, which allows the federal

163 intent than we have space, or need, to “This issue transcends partisanship, and we address here.” must work together,” Mr. Holder continued. “We cannot allow the slow unraveling of the The department may also soon bring similar progress that so many, throughout history, legal action against Texas over its voter have sacrificed so much to achieve.” identification law, which was also blocked by a federal court last year. Hours after the Supreme Court’s ruling in the Shelby County case, the state said it would begin enforcing the law.

Richard L. Hasen, a professor at the University of California, Irvine, who specializes in election law, said Thursday’s filing was a “huge deal showing that the department is going to be aggressive in seeking to resurrect what it can of the old preclearance regime” adding that “getting the state of Texas covered again would be important not just symbolically but practically, as it would put its tough new voter ID law back on hold.”

But Professor Hasen added that trying to “bail in” jurisdictions under Section 3 was not a substitute for Section 5’s comprehensive oversight requirements for all of the areas it covered.

“This is a clunky way to cover only a subset of jurisdictions found to be intentionally discriminating — a tough legal standard to prove,” he said. “And courts have discretion to grant or not grant bail-in, and to fashion the remedy as they see fit.”

Mr. Holder urged Congress to reimpose more general preclearance requirements.

The bail-in procedure, he said, is “no substitute for legislation that will fill the void left by the Supreme Court’s decision.”

164