Academic journal article Harvard Law Review

Fourteenth Amendment - Equal Protection Clause - Political-Process Doctrine

Academic journal article Harvard Law Review

Fourteenth Amendment - Equal Protection Clause - Political-Process Doctrine

Article excerpt

In recent years, the Supreme Court has several times considered the constitutionality of race-based admissions preferences. (1) However, it has not analyzed the degree to which the Equal Protection Clause, particularly the political-process doctrine, might restrict the means to abolish such preferences. The political-process doctrine--derived from Hunter v. Erickson (2) and Washington v. Seattle School District No. 1 (3)--prohibits subjecting legislation benefiting racial minorities to a more burdensome political process than that imposed on other legislation. Last Term, in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), (4) the Supreme Court upheld a state constitutional amendment that, inter alia, prohibited public universities from using race as a factor in the admissions process. A three-Justice plurality abandoned the political-process doctrine, and, in its place, introduced a new test--whether the law "had the serious risk, if not purpose, of causing specific injuries on account of race." But because the plurality did not clearly define the term "injury on account of race," (5) its test may prove difficult to apply; and ultimately, the inquiry seems to require the same type of race-based analysis that led the plurality to reject the political-process doctrine.

The political-process doctrine, as enunciated in Hunter and Seattle, prohibits the state from imposing extra burdens--beyond those of the ordinary political process--on legislation benefiting minorities. In Hunter, the voters of Akron, Ohio, amended the city charter to overturn a fair housing ordinance and to require a referendum for any future ordinance prohibiting racial bias in real property transactions. (6) In striking down the amendment, the Supreme Court applied strict scrutiny because the law "place[d] special burdens on racial minorities within the governmental process" by "disadvantag[ing] those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations." (7) Just over a decade later, Seattle relied on Hunter to strike down a state constitutional amendment that prohibited desegregative busing absent a court order, thereby extinguishing the authority of local school boards to address de facto segregation. (8) First, the amendment triggered Hunter by having "a racial focus" (9): it banned legislation that minorities may consider to be in their interest and that "inures primarily to [their] benefit." (10) Second, the amendment "work[ed] a reallocation of power"--also known as a political restructuring--"of the kind condemned in Hunter" by "remov[ing] the authority to address a racial problem --and only a racial problem--from the existing decisionmaking body, in such a way as to burden minority interests." (11)

Schuette arose from a reallocation of power that dealt with the controversial topic of affirmative action. In 2006, Michigan voters approved Proposal 2, a state constitutional amendment that prohibited public universities from granting race-based preferences in the admissions process. (12) Proposal 2 was immediately challenged as violating the political-process doctrine by removing from university officials the ability to implement race-based admissions preferences. (13) The district court rejected that argument and granted the Michigan Attorney General's motion for summary judgment. (14) The court found the political-process doctrine inapplicable, distinguishing Hunter and Seattle, cases involving "laws that protect against unequal treatment on the basis of race," from Proposal 2, which prohibits laws "seek[ing] advantageous treatment on the basis of race." (15)

A divided panel of the Sixth Circuit reversed the grant of summary judgment, but the full court granted en banc review. (16) The en banc Sixth Circuit then reached the same result by an 8-7 vote. …

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