No.

12-682

Supreme Court of the United States

BILL SCHUETTE, MICHIGAN ATTORNEY GENERAL, Petitioner, v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), et al., Respondents. On Writ of Certiorari to the United States Courts of Appeals for the Sixth Circuit BRIEF OF THE XIV FOUNDATION AND SUPPORTERS OF CIVIL RIGHTS INIATIVES IN MICHIGAN, ARIZONA, CALIFORNIA, COLORADO, NEBRASKA, NEW HAMPSHIRE, AND WASHINGTON, AS AMICI CURIAE IN SUPPORT OF PETITIONERS
ROBERT N. DRISCOLL* FRIEDLANDER MISLER, PLLC 5335 Wisconsin Avenue, Suite 600 Washington, DC 20015 (202) 872-0800 rdriscoll@dclawfirm.com

IN THE

* Counsel of Record July 1, 2013

WILSON-EPES PRINTING CO., INC. (202) 789-0096 W ASHINGTON, D. C. 20002

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ INTERESTS OF AMICI CURIAE ...................... SUMMARY OF THE ARGUMENT .................... ARGUMENT ........................................................ I. Hunter and Seattle, the lynchpins of the Sixth Circuit decision, are no longer good law and should be overturned ......... II. The Michigan Civil Rights Initiative is Distinguishable from the Challenged Laws in Seattle and Hunter ...................... A. There is no discriminatory intent, racial classification or racial focus to the MCRI ......................................... B. MCRI is a broad antidiscrimination amendment that does not target a particular local law and thus does not restructure a political process ...... C. Proponents of racial preferences are not a politically powerless group similar to the plaintiffs in Seattle and Hunter .................................................. D. Because racial preferences policies in higher education are constitutional only when their benefits flow to all people and if a racial preference program was not designed for the purpose of benefitting the minority, the political restructuring doctrine cannot apply ........................................ CONCLUSION .................................................... (i) ii 1 2 10

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ii TABLE OF AUTHORITIES CASES Page Adarand Constructors v. Pena, 515 U.S. 200 (1995) ........................................................... passim Arlington Heights v. Metro Hous. Dev. Corp. 429 U.S. 252 (1977) ...................................... 12

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ...................................... 5, 6, 11, 13 Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), cert. denied, 522 U.S. 963 (1997) ........................................ 4, 7, 14, 15, 18 Coal. to Defend Affirmative Action v. Regents of Univ. of Mich. 701 F.3d 466 (6th Cir. 2012)............................................................. passim Coral Construction, Inc. v. City & County of San Francisco, 235 P.3d 947 (Cal. 2010) ..... 5, 15 Crawford v. Bd. of Educ., 458 U.S. 527 (1982) ............................................................ 3

Fisher v. Univ. of Texas at Austin, 570 U.S. ___, slip op. (2013) ........................................ 9, 21 Gratz v Bollinger, 539 U.S. 244 (2003)........... passim Grutter v. Bollinger, 539 U.S. 303 (1993)....... passim Hunter v. Erickson, 393 U.S. 385 (1969) ........ passim Metro Broadcasting v. FCC, 497 U.S. 547 (1990) ...........................................................5, 6, 12 Miller v. Johnson, 515 U.S. 900 (1995) ........... 11 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) ........... 6, 17

iii TABLE OF AUTHORITIESContinued Page(s) Regents of the University of California v. Bakke, 438 U.S., 265 (1978) ......................... 10, 23 San Antonio Independent School District v. Rodriquez, 411 U.S. 1 (1973) ....................... 8, 20 Shaw v. Reno, 509 U.S. 630 (1993) ................. Shelley v. Kraemer, 334 U.S. 1 (1948) ............. 12 13

Washington v. Seattle School District No. 1, 458 U.S. 457 (1982) ..................................... passim Washington v. Davis, 426 U.S. 229, 239 (1976) ............................................................ CONSTITUTION Mich. Const. art. I, 26 .................................. passim U.S. Const. amend. V .................................... 6, 12, 13 U.S. Const. amend. XIV .................................. passim STATUTES Fair Housing Act of 1968, 42 U.S.C. 3604(b)........................................................ Equal Credit Act, Pub. L. 94-239, 90 Stat. 251 (1974). .................................................... OTHER AUTHORITIES N.H. HB 0623 ................................................... 2 17 18 3

INTEREST OF AMICI CURIAE 1 Amicus curiae the XIV Foundation (XIV) is dedicated to the principle that equal treatment is the essence of civil rights and that all people are entitled to civil rights. Named after the 14th Amendment, XIV aims to teach the necessity of fair and equal treatment by telling the personal stories of those harmed by discriminatory policies. XIV was founded by Jennifer Gratzthe plaintiff in Gratz v Bollinger, 539 U.S. 244 (2003), who has dedicated her life to promoting the importance and value of equal protection under the law. After this Courts decision in Gratz and its companion case, Grutter v. Bollinger, 539 U.S. 303 (2003), Ms. Gratz was a founder and then leader of the Michigan Civil Rights Initiative, the group that placed the initiative of the same name on the ballot in Michigan, leading to the amendment to the Michigan Constitution that is the subject of this litigation. Gratz also played significant roles educating and mentoring leaders in other states to encourage them to advocate for passage of their own civil rights initiatives. For obvious reasons, Gratz, a one-time victim of the University of Michigans unconstitutional program of racial classification in admissions, has an interest in preserving the Michigan Civil Rights Initiative (now
This amicus brief is filed with the consent of the parties. Counsel for the Petitioners and Respondents have granted blanket consent for the filing of amicus briefs in this case, in accordance with this Courts Rule 37.3(a). Pursuant to Rule 37.6, the amici submitting this brief and their counsel hereby represent that no party to these cases or their counsel authored this brief in whole or in part, and that no person other than amici and their counsel paid for or made a monetary contribution toward the preparation and submission of this brief.
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2 Mich. Const. art. I, 26) (MCRI), a sweeping civil rights amendment that prohibits discrimination on the basis of race, gender, national origin, or color by the State of Michigan in contracting, employment, and education. The MCRI requires precisely the equal treatmentwithout regard to race, gender, or national originthat the XIV Foundation was founded by Ms. Gratz to promote. The XIV Foundation is joined in this brief by additional amicileaders from around the country who have and continue to promote legislation or constitutional amendments that, like the MCRI, seek to require equal treatment under the law without regard to race or gender. 2 All of the amici have an interest in promoting both equal treatment under the law and preserving their rights to seek to require equal treatment through the democratic process. SUMMARY OF THE ARGUMENT Michigans Civil Rights Initiative was passed overwhelmingly (by a 58 to 42 margin) by Michigan voters through the ballot initiative process in November of 2006. The amendment generally prohibits discrimination against, or granting preferential treatment in favor of, individuals on the basis of race, sex, color, ethnicity, or national origin with
Larry Arnn (Current President Hillsdale College; Chairman, California Civil Rights Initiative); Glynn Custred (Author, California Civil Rights Initiative); John Carlson (Chairman, Washington Civil Rights Initiative); Leon Drolet (Chairman, Michigan Civil Rights Initiative); Marc Schniederjans (Chairman, Nebraska Civil Rights Initiative); Jessica Peck (Executive Director, Colorado Civil Rights Initiative); Rachel Alexander (Chairman, Arizona Civil Rights Initiative); and Representative Gary Hopper (Sponsor, HB 0623, New Hampshire Civil Rights Initiative).
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3 respect to public education, public contracting, or public employment. See Mich. Const. art. I, 26. The amendment has not been challenged insofar as it applies to public contracting and public employment, and with good reasonthis Court has been clear that [t]he central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. Washington v. Davis, 426 U.S. 229, 239 (1976). Thus, Michigans ban on discrimination (and preferential treatment) in public contracting and employment is fully consistent with this Courts Equal Protection Clause jurisprudence. It would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it. Crawford v. Bd. of Educ., 458 U.S. 527, 535 (1982). It is hard to imagine any litigant seriously arguing that, by imposing a general prohibition on racial and gender discrimination in state contracting and employment, the State of Michigan has run afoul of the Fourteenth Amendment. However, with respect to public education, specifically in the narrow context of use of race in decisionmaking with respect to admission to Michigans institutions of higher learning, proponents of so-called affirmative action, and an en banc majority of the Sixth Circuit, have turned the Equal Protection Clause on its head to conclude that Michigans general ban on state racial and gender discrimination violates the Equal Protection Clause by prohibiting racial discrimination in higher education admissions. Although this case focuses on the ability of institutions of higher learning in Michigan to use racial classifications in their admissions decisions, it does

4 not turn on this Courts decision in Grutter, 539 U.S. 303, which found certain narrow uses of race in admissions permissible under certain circumstances but certainly not constitutionally required. Id. at 343 (the Equal Protection Clause does not prohibit the Law Schools narrowly tailored use of race . . . .) (emphasis added). Rather, the Sixth Circuits counterintuitive result stems from its application of this Courts decisions in Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), cases articulating a political restructuring theory of equal protection analysis that the Court has not endorsed in 31 years. The Sixth Circuit reads Hunter and Seattle as compelling a remarkable conclusion: that voters of a state may not choose, via broad constitutional amendment barring discrimination, to prohibit their state-run universities from discriminating on the basis of race or gender without running afoul of the Equal Protection Clause. Coal. to Defend Affirmative Action v. Regents of Univ. of Mich. 701 F.3d 466, 489 (6th Cir. 2012) (BAMN) (Those portions of [the MCRI] that affect Michigans institutions of higher education violate the Equal Protection Clause.) The Sixth Circuits decision, which conflicts with both the Ninth Circuits decision rejecting a nearly identical political restructuring challenge to a vir3 tually identical California constitutional amendment (also passed by referendum), Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (Wilson II), cert. denied, 522 U.S. 963 (1997); as well as the California Supreme Courts decision interpreting the same amendment Coral Construction, Inc. v. City &
Amicus Larry Arn is the Chairman of the California Civil Rights Initiative.
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5 County of San Francisco, 235 P.3d 947 (Cal. 2010), cannot stand. First, the Sixth Circuit decision rests entirely on the continued vitality of Seattle and Hunter and the political restructuring doctrine derived from those cases. But Seattle and Hunter themselves should be overruled because both cases require the Court to apply a different equal protection standard to a facially-neutral statute depending on whether a minority or majority racial group benefits from a particular law (or is harmed by a facially-neutral law modifying it) and, thus, cannot be squared with the Courts decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), which held that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. Id. at 494 (plurality opinion); id. at 520 (Scalia, J., concurring in judgment). In this respect, Seattle and Hunter are analogous to Metro Broadcasting v. FCC, 497 U.S. 547, 564-65 (1990), in which this Court held that the level of scrutiny to be applied to federal government programs employing racial classifications depended on whether such programs were designed to benefit minority groups historically subject to discrimination (and were therefore benign, triggering only intermediate scrutiny) or not (therefore triggering strict scrutiny). Id. But this Court has since rejected the Metro Broadcasting approach, explicitly overruling it in Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995), and has, since Adarand, consistently rejected any argument that the type of equal protection analysis employed when evaluating an equal protection challenge is somehow dependent on whether

6 minority or majority interests are at stake. See, e.g., Gratz, 539 U.S at 270; Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). Seattle and Hunter are also both decisions that undertook analysis of legislations effect on ethnic or racial groups, rather than on individuals, and, therefore, are in conflict with this Courts more recent Equal Protection Clause cases recognizing the basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons not groups. Adarand, 515 U.S. at 227 (emphasis in original). For this reason as well, it is time to revisit, and overrule, Seattle and Hunter. The Court has not had the opportunity to consider whether Seattle and Hunter remain good law in light of Croson and Adarands command that proper equal protection analysis does not change depending on who is asking. Now that that the issue is squarely before the Court, Seattle and Hunter should suffer the same fate as Metro Broadcasting and be overruled. Second, to the extent that Seattle and Hunter retain any precedential value, they are inapplicable to the case before the Court for multiple reasons. Most importantly, for the political restructuring doctrine to apply, even under its own terms, there must be a racial classification, 458 U.S. at 485, or evidence of purposeful racial discrimination. Seattle School Dist., 458 U.S. at 484-85 ([P]urposeful discrimination is the condition that offends the Constitution. . . . Thus, when facially-neutral legislation is subjected to equal protection attack, an inquiry into intent is necessary to determine whether the legislature in some sense was designed to accord sep-

7 arate treatment on the basis of racial considerations. (citations and internal quotation marks omitted)). The opposite is true in the case of the MCRI, the purpose of which is to eliminate racial classifications in Michigan and prohibit discriminatory conduct. To reach a contrary conclusion, as the Sixth Circuit did below, turns the Equal Protection Clause on its head by protecting the right to seek unequal treatment, rather than the right to be treated equally. See Wilson, 122 F.3d at 708 (It is one thing to say individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment.) Moreover, this case is distinguishable from Seattle and Hunter because both cases were challenges to government actions that removed a single issue from the local political body, where it had been previously addressed, and granted future authority on the narrow topic to a more remote level of government. See, Seattle Sch. Dist., 458 U.S. at 531 (finding that the amendment in question lodg[es] decision-making authority at a new and remote level of government.) Even if such transfers of decision-making authority with respect to a particular issue were, under the circumstances of Hunter and Seattle, improper, those facts bear no resemblance to Michigans challenged action here. In contrast with the facts of Seattle and Hunter, MCRI did not target any local, democraticallyadopted ordinance. Rather, MCRI is a sweeping antidiscrimination amendment applying to all aspects of Michigan state government.

8 Nor did MCRI move decision-making regarding racial preferences from a local democratic institution to a more remote level of government. Rather, (with respect to higher education) it put the question of racial discrimination and preferences to a state-wide vote instead of leaving the issue to be determined (on a state-wide basis) in the administrative bureaucracies of the state universities. Thus, unlike in Hunter and Seattle, here there is no local or less remote democratic institution affected by the MCRI. Indeed, to the extent the state universities administrative bureaucracies responsible for racial preference policies are democratically accountable at all, they are accountable through their Boards of Governors, who are elected (state-wide) over multiple election cycles. BAMN, 701 F.3d at 499-500 (Gibbons, J. dissenting). To decide an issue of state-wide applicability via state-wide referendum (as opposed to by administrative fiat) is not a restructuring of a political process at all, and, thus, Seattle and Hunter do not apply to this case. The political restructuring doctrine is inapposite to this case for yet another reason: as this Court stated in Seattle, one justification for the Courts overturning a state constitutional amendment adopted by referendum was that the case implicate[d] the judiciarys special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. Seattle Sch. Dist., 458 U.S. at 486 (citing San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 28 (1973). But such a rationale clearly has no applicability in the context of racial preferences in 2013. Proponents

9 of racial preferences in higher education today are not a powerless political minority requiring this Courts protection, but a powerful political coalition. Although this brief will be filed long before amici in support of racial preferences must file, if the Fisher v. Univ. of Texas at Austin, 570 U.S. ____, slip op. (2013), Gratz, and Grutter cases are any indication, supporters of racial preferences will far outnumber defenders of the MCRI. Whatever term might define proponents of racial preferences in 2013, powerless is not one of them. Proponents of racial preferences can certainly be expected to compete on equal footing in the political process with advocates of racial neutrality. Finally, Seattle and Hunter cannot apply in the racial preference context because, read in conjunction with this Courts decisions in Fisher and Grutter, the decisions place respondents on the horns of an inescapable logical conflict: in order for the political restructuring doctrine to apply, the respondents must show that the racial preferences they defend inure primarily to the benefit of the minority, and [are] designed for that purpose. Seattle Sch. Dist., 458 U.S. at 472. But those very same racial preference policies can only be constitutional if their purpose is to further a compelling interest in obtaining the education benefits that flow from a diverse student body. Grutter, 539 U.S. at 342. If indeed racial preference programs were designed to benefit the minority as Seattle and Hunter require, rather than to obtain, for all students and for society as a whole, the educational benefits of diversity, the programs themselves would be unconstitutional. See Grutter, 539 at 333 (The Law Schools interest is not simply to assure within its student body some specified percentage of a particular group merely

10 because of its race or ethnic origin. []That would amount to outright racial balancing, which is patently unconstitutional. Id. (quoting Regents of the University of California v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.)). Therefore, any racial preference program in Michigan that is constitutional must not have been designed for the benefit of the minority, but, rather, to obtain the benefits of educational diversity for all people, and no political restructuring claim may be made against the MCRI. Conversely, to the extent the MCRI is found to target a racial preference program designed for the benefit of the minority, that affirmative action program is unconstitutional under Grutter. ARGUMENT I. Hunter and Seattle, the lynchpins of the Sixth Circuit decision, are no longer good law and should be overturned. The decision below eschews traditional Equal Protection Clause analysis by relying on Hunter and Seattle, two cases in which this Court endorsed applying strict scrutiny to facially-neutral laws only where such laws effectively repealed a prior law or policy that inured to the benefit of racial minorities and moved the applicable decision-making process to a level of government that (the Court perceived) would make political victory more difficult for the minority. See generally, BAMN, 701 F.3d at 477 (citing Seattle Sch. Dist., 458 U.S. at 467; Hunter, 393 U.S. at 391). This propositionthe political restructuring doctrineholds that a different Equal Protection Clause analysis applies to a facially-neutral statute depending on which racial group benefits

11 from a particular law (or is harmed by a faciallyneutral law modifying it) and, therefore, cannot be squared with the Courts decision which held that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. Croson, 488 U.S. at 494 (plurality opinion); id. at 520 (Scalia, J., concurring in judgment). While Croson (and later Adarand, 515 U.S. 200), both addressed explicit racial classifications and rejected the proposition that differing modes of equal protection analysis apply to benign versus invidious discrimination, Hunter and Seattle purport to accomplish the same differential treatment (in the context of race-neutral laws) based on which race(s) (in the Courts judgment) benefit from, or are burdened by, both the challenged law and the law it modified. See Seattle Sch. Dist., 458 U.S. at 471-72 (acknowledging the facial neutrality of the initiative in question, but finding a racial focus to the initiative because desegregation of the public schools, like the Akron open housing ordinance, at bottom inures primarily for the benefit of the minority . . .) (emphasis added) and Hunter, 393 U.S. at 391 ([A]lthough the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the laws impact falls on the minority. The majority needs no protection against discrimination . . . . (emphasis added)). But this kind of analysis requires the Court to depart from its traditional principle that faciallyneutral laws warrant strict scrutiny only if they are motivated by a racial purpose or object, Miller v. Johnson, 515 U.S. 900, 913 (1995), or are, on their face, one of those rare laws that are unexplainable

12 on grounds other than race, Shaw v. Reno, 509 U.S. 630, 646 (1993) (quoting Arlington Heights v. Metro Hous. Dev. Corp. 429 U.S. 252, 266 (1977)). Rather, strict scrutiny is triggered based on whether, in the Courts estimation, the minority or the majority benefits from a particular law or policy. This application of a stricter or looser standard of review depending on which racial or ethnic groups interests are at stake cannot survive because it is functionally indistinguishable from the Courts reasoning (analyzing federal equal protection component of the Fifth Amendment Due Process Clause) in Metro Broadcasting v. FCC, 497 U.S. 547, 564-65 (1990) (holding that the question of whether federal race-conscious measures are analyzed under strict or intermediate scrutiny turns on whether such laws are benign with regard to the interests of minority groups) that was overruled by Adarand, 515 U.S. at 227. In fact, Adarand specifically criticized the Metro Broadcasting Courts contention, which would also be required by the Hunter and Seattle political restructuring doctrine, that the race of the group benefiting from or burdened by a particular law determines which standard is used to analyze it under the Equal Protection Clause. See Adarand, 515 U.S. at 227 (Under Metro Broadcasting, . . . the race of the benefited group is critical to the determination of which standard of review to apply. Metro Broadcasting was, thus, a significant departure from much of what had come before it.). Because Hunter and Seattle suffer from the same defectapplying different equal protection standards depending on the race of group burdened or benefitted by particular law or policyas Metro Broadcasting, they must also be overruled. Hunter and Seattle should be overruled as well because both decisions undertake analysis of legisla-

13 tions effect on ethnic or racial groups, rather than individuals, and therefore contradict this Courts more recent Equal Protection Clause cases recognizing the fundamental principle of equal protection as a personal right. Adarand, 515 U.S. at 235 (emphasis added). Compare Hunter, 393 U.S. at 393 ([T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any persons vote . . . ) (emphasis added) and Seattle Sch. Dist., 458 U.S. at at 484 (This imposes direct and undeniable burdens on minority interests. . . . [o]ne group cannot be subjected to a . . . . disadvantage.) (emphasis added) with Croson, 488 U.S. at 494 (noting that the rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)) (emphasis added); Adarand, 515 U.S. at 227 (the Fifth and Fourteenth Amendments to the Constitution protect persons not groups) (emphasis in original); Gratz, 539 U.S at 270 (It is by now well established that any person, of any race, has the right to challenge government racial classifications under the same standard of review). The wisdom of this Courts more recent decisions viewing equal protection as a personal right rather than a group right is highlighted by any attempt to apply Seattles test and determine whether affirmative action policies that plaintiffs below sought to preserve inure primarily to the benefit of the minority, and [are] designed for that purpose, Seattle Sch. Dist., 458 U.S. at 472, and whether art. I, 26 by requiring equal treatmentburdens minority interests. The first hurdle to be overcome is defining the minority. Are women, who make up a majority

14 of both Michigan voters and college students, a minority or a majority for purposes of the political restructuring doctrine? See Wilson, 122 F.3d at 705, fn.13 (finding the argument that Hunter and Seattle do not extend to gender-based laws because women are a majority of the electorate compelling but not reaching the issue). Similarly, are women as a group burdened or benefitted by a ban on gender preferences, given that it is likely men who are currently the underrepresented gender on Michigan campuses? If women are the beneficiaries of affirmative action policies and, therefore, burdened by MCRIs prohibition on gender preferences, then can over half the population be a minority requiring protection under Seattle and Hunter? Moreover, who is the minority for purposes of the political restructuring doctrines purported application to this case? For example, Asian-Americans are certainly traditionally viewed as a minority group, albeit one that has in recent history been burdened by, not a beneficiary of, racial preferences. See, e.g., Gratz, 539 U.S. at 253-54 (describing racial and ethnic groups (other than Asian Americans) receiving preferential treatment under the challenged admissions program). By virtue of being an ethnic minority in the typical sense are Asian-Americans to be regarded as part of the minority racial preference policies are designed to be racially beneficial for? See Seattle Sch. Dist, 458 U.S. at 483 (noting that the state of Washingtons anti-bussing initiative made racially beneficial legislation more difficult). Or because Asian-Americans have not been underrepresented minorities with the scope of Michigans racial preference policies, are Asian-Americans, therefore, part of the majority that needs no protection from discrimination according to Seattle? Cf. BAMN,

15 701 F.3d at 510 (Nor is it even clear which groups men or women, this racial group or that one[MCRI] helps or hurts, or when each group will be affected.) (Sutton, J., dissenting) Other courts and commentators have highlighted the difficulty of reconciling Seattle and Hunter with current Equal Protection Clause jurisprudence and requested that this Court provide clarification. Wilson, 12 F.3d at 705 n.13 (describing the conflict between Seattle and Hunters political restructuring doctrine and the Adarand line of case recognizing equal protection as a personal right as seemingly irreconcilable); Coral Construction. Inc., 50 Cal. 4th at 341 (describing the difficulty of squaring the political structure doctrine with modern equal protection jurisprudence and stating that it would be helpful for this Court to clarify matters by directly addressing the continued viability of the political structure doctrine in the appropriate case) (Corrigan, J, concurring); BAMN, 701 F.3d at 513 (collecting sources critical of the political restructuring doctrine as inconsistent with accepted equal protection principles) (Griffin, J, dissenting). This Court should provide that clarification by overruling Seattle and Hunter. II. The Michigan Civil Rights Initiative is Distinguishable from the Challenged Laws in Seattle and Hunter. Assuming the political restructuring doctrine of Seattle and Hunter is still good law, this case is easily distinguishable from both Seattle and Hunter and the doctrine has no applicability here.

16 A. There is no discriminatory intent, racial classification or racial focus to the MCRI. Even if the political restructuring theory is itself valid, a challenged law can only violate the Equal Protection Clause when there is a racial classification, 458 U.S. at 485, or evidence of purposeful racial discrimination. Seattle Sch. Dist., 458 U.S. at 484-85 ([P]urposeful discrimination is the condition that offends the Constitution. . . . Thus, when facially neutral legislation is subjected to equal protection attack, an inquiry into intent is necessary to determine whether the legislature in some sense was designed to accord separate treatment on the basis of racial considerations.) (citations and internal quotation marks omitted). But the whole purpose of the MCRI is to remove any racial classifications or discrimination from governmental decision-making in Michigan, and, thus, the political restructuring doctrine is inapplicable. Amicus XIV Foundation has a unique perspective to comment on motivations behind the MCRI because its CEO, Jennifer Gratz, was the Executive Director of the MCRI (the organization that undertook the ballot initiative that led to the amendment of the Michigan Constitution), as well as the plaintiff in Gratz v. Bollinger 539 U.S. 244 (2003). As this Court found, Gratz herself was the victim of the State of Michigans unconstitutional race preferences. Id. at 539 U.S. at 274 (finding that the admissions system used to consider Ms. Gratzs application to the University of Michigan violated the Equal Protection Clause). Thus, it makes sense that she and other interested parties sought to eliminate the practice of racial classification by Michigan in hiring, contract-

17 ing and education. It is hard to imagine someone less likely to possess discriminatory intent than a victim of discrimination who sought only equal treatment under the law, persevered all the way to this Court to achieve it, and then sought to eliminate, for all citizens of her state, the presumptively unconstitutional practice that she challenged. See Parents Involved, 551 U.S. at 720 (2007) (race-conscious admissions plans are presumptively unconstitutional except when necessary to remedy past discrimination). And yet for the political restructuring doctrine to be applicable to the MCRI, the elimination of racial and gender classifications must either itself be declared a racial classificationwhich makes no senseor this Court must find that enacting MCRI was in some sense purposeful discrimination which requires a contortion of the MCRI itself. While the text of the MCRI itself eliminates any question about its discriminatory intent, the record below bolsters the argument. The district court recognized that Ms. Gratz and other proponents of the MCRI offered nondiscriminatory purposes for its adoption and, thus, the district court could not say that the only purpose of [ 26] is to discriminate against minorities. BAMN, 701 F.3d at 504 (Gibbons, J. dissenting). This is not a difficult conclusion to reach with respect to an amendment prohibiting racial classifications. The Sixth Circuits reasoning that the political restructuring doctrine applies because MCRIs mandate of equal treatment itself has a racial focus, which in turn triggers application of Seattle and Hunterwould make nearly every broad civil rights statute subject to a political restructuring attack, because nearly all civil rights statutes require equal treatment. See, e.g., Fair Housing Act

18 of 1968, 42 U.S.C. 3604(b) (prohibiting discrimination in housing transactions because of race, color, religion, sex, familial status, or national origin) and Equal Credit Act, Pub. L. 94-239, 90 Stat. 251 (1974). Thus all broad civil rights statutes impede the ability of any particular racial group to seek preferential treatment from a lower level of government. The reason such statutes are not subject to political structure challenges is because, as the Ninth Circuit recognized, [i]t is one thing to say individuals have equal protection rights against impediments to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment. While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment on its own terms. Wilson, 122 F.3d at 708. B. MCRI is a broad antidiscrimination amendment that does not target a particular local law and thus does not restructure a political process. The instant case is distinguishable from both Hunter and Seattle because both cases were challenges to state actions that removed a single issue (in Hunter, housing anti-discrimination policy, and in Seattle, bussing for purposes of racial balance) from the local political structure (in Hunter, a City Council, in Seattle, a local school board), where it had been previously addressed, and granted future authority on the narrow topic to a more remote level of government. Even if such transfers of decisionmaking authority with respect to a particular issue were, under the circumstances of Hunter and Seattle, improper, those facts bear no resemblance to the Michigans challenged action here.

19 The MCRI does not address only racial preferences in higher education. Rather, it is a sweeping prohibition against racial and gender discrimination in public contracting, public education, and public employment in short, precisely the type of legislation one would expect to be passed at the state level and a far cry from the challenged actions in Seattle and Hunter. See Mich. Const. art 1, 26 (commanding that the state, and its institutions of higher education, shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.) The fact that the plaintiffs below, proponents of racial preferences in higher education, did not challenge the bulk of the MCRI, does not transform the amendment from the sweeping prohibition of discrimination in state government that it is into the narrow removal of a controversial topic from local control that occurred in Seattle and Hunter. Perhaps more importantly, the passage of the MCRI did not restructure Michigans lawmaking structure or impair the ability of minority interests by reallocating decision-making authority from a local legislative body to a more complex governmental structure, Seattle 458 U.S. at 477. In contrast with Seattle and Hunter, the racial preference policy that plaintiffs below seek to preserve here was not a democratically-adopted ordinance or law specifically tailored to a particular locality, but was crafted within the administrative bowels of the state-wide university systems. See BAMN, 701 F.3d at 499 (Gibbons, J., dissenting). As Judge Gibbons pointed out in dissent below, the people of Michigan have not restructured the states lawmaking process in the

20 manner prohibited by Seattle and Hunter. Instead, their vote removed admissions policy from the hands of decision-makers who are unelected and unaccountable . . . and placed it squarely in an electoral process. Id. Whatever Seattle and Hunter stand for today, those decisions cannot stand for the proposition that the administrative apparatus of one state-wide political body (the university systems, whose Board of Governors run in state-wide elections) cannot have its policies altered by a state-wide voter referendum adopting a broad policy that contradicts its preferred policy. C. Proponents of racial preferences are not a politically powerless group similar to the plaintiffs in Seattle and Hunter. In addition, Seattle and Hunter are distinguishable to the extent the Courts rulings in those cases sought to protect a political and racial minority (black families in Seattle and Akron) in a particular locality from hostile political majorities seeking to place political hurdles in place to thwart a popularlyadopted local law passed for the benefit of that minority group. As this Court stated in Seattle, placing unusual burdens on racial groups to enact legislation implicates the judiciarys special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. Seattle Sch. Dist., 458 U.S. at 486 (citing San Antonio Independent School District, 411 U.S. at 28.

21 Even presuming Seattle is still good law, it strains credulity to cast proponents of racial preferences in higher education today as a powerless political minority requiring this Courts protection and as the political equivalent of black families seeking integration through bussing in Seattle in 1982 or black families seeking the benefit of anti-discrimination housing ordinances in Akron in 1969. Racial preference policies in higher education today are hardly without broad political support beyond a particular locality or racial group, especially among political, academic, and business elites. Whatever terms might define proponents of racial preferences in 2013, powerless is not among them. Proponents of racial preferences can certainly be expected to compete on equal footing in the political process with advocates of racial neutrality. When this Court last reviewed the University of Michigans racial preference policies, for example, the Governor of Michigan, General Motors Corporation, a consortium of other Fortune 500 companies, the American Bar Association, United States Senators, Presidents and Deans of virtually every prominent University and College in the nation, retired military leaders, and numerous other political, business and cultural leaders all filed amicus briefs supporting Michigans policy of racial preferences in higher education. See Grutter, 539 U.S. at 333-34 (citing briefs filed by various amici in support of continued use of racial preferences). This support has not waned. This past term, 73 amici filed briefs in support of racial preferences in Fisher v. Univ. of Texas at Austin, 570 U.S., slip op. at __ (2013) (Thomas, J, concurring). Moreover, the Michigan Civil Rights Initiative itself was opposed by both the Republican and Democratic candidates for Governor

22 running at the time it passed, as well as a litany of powerful individuals and community groups. 4 The MCRI did, however, gather impressive support from the citizens of Michigan, who apparently saw value in a broad pronouncement of nondiscrimination by the state government even though many of their state political, business, and academic leaders disagreed with the proposed constitutional amendment. It would be strange indeed if this Court, relying on Hunter and Seattle, invalidated a state constitutional ban on discrimination because it found the array of CEOs, university presidents, bar associations, and federal and state leaders lined up in
A press release from One United Michigan, a group opposed to MCRI, listed the following people among its co-chairs for its campaign opposing the MCRI: AT&T Michigan President Gail Torreano; Teamsters General President James P. Hoffa; Walbridge Aldinger Chairman and CEO John Rakolta Jr.; DTE Energy CEO and Chairman Tony Earley; Blue Cross-Blue Shield of Michigan CEO-Designee Daniel Loepp; United Auto Workers President Ron Gettelfinger; Bing Steel Chairman & CEO Dave Bing; Shirley Stancato, President & CEO of New Detroit; Doug Rothwell, President and CEO of Detroit Renaissance; Henry Ford Health System President and CEO Nancy Schlichting; Strategic Staffing Solutions President, CEO and Founder Cynthia Pasky; Tom Gottschalk, Executive Vice President, Public Policy and General Counsel of General Motors Corporation; Tim O'Brien, Deputy Chief of Staff, Ford Motor Company; Frank Fountain, Senior Vice President, External Affairs/Public Policy, DaimlerChrysler Corporation; Archbishop of Detroit and Chairman of the Michigan Catholic Conference Adam Cardinal Maida; and Dennis Archer, Chairman of the Board of Dickinson Wright. One United Michigan, Coalition Supporting Equal Opportunity Affirmative Action Continues to Grow (Press Release, April 6, 2006) available at http:// www.prnewswire.com/news-releases/coalition-supporting-equalopportunity-affirmative-action-programs-continues-to-grow-56058 502.html (last visited June 28, 2013).
4

23 support of racial preferences in higher education insufficiently powerful to compete politically with a grass-roots non-discrimination movement. D. Because racial preferences policies in higher education are constitutional only when their benefits flow to all people and if a racial preference program was not designed for the purpose of benefitting the minority, the political restructuring doctrine cannot apply. Finally, because [c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause, Grutter, 539 U.S. at 327, this case is distinguishable from Seattle and Hunter for still one more reason: the racial preference programs plaintiffs below sought to preserve cannot be characterized as programs that inure primarily to the benefit of the minority, and [are] designed for that purpose. Seattle, 458 U.S. at 472. Nor can the MCRI be characterized as a facially-neutral law for which the reality is that the laws impact falls on the minority. Hunter, 393 U.S. at 391. Indeed, it is clear from this Courts decision in Grutter that it is racial preferences perceived benefits to all students, and indeed to society itself, that is the key reason these programs are, in some circumstances, constitutional at all. Grutter 539 at 333 (The Law Schools interest is not simply to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin. That would amount to outright racial balancing, which is patently unconstitutional. Id. (quoting Bakke, 438 U.S., at 307 (opinion of Powell, J.)).

24 The Court in Grutter relied extensively (if not exclusively) on the benefits of racial preferences beyond those to any particular minority group in finding that the benefits that flow from educational diversity were a compelling state interest. Access to legal education (and, thus, the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. Grutter at 332 (emphasis added). Given that racial preferences remain constitutional in limited circumstances only because their purpose is not to benefit a particular minority group, but to provide society at large with the benefits that flow from educational diversity id. at 343, the political restructuring analysis undertaken by the Sixth Circuit is not appropriate. As the Sixth Circuit acknowledged, in order to trigger political restructuring analysis rather than traditional Equal Protection analysis, the challenged enactment must ha[ve] a racial focus, targeting a policy or program that inured primarily to the benefit of the minority. BAMN, 701 F.3d at 477 (quoting Seattle, 458 U.S. at 467). But, notwithstanding the Sixth Circuits contrary conclusion, this standard could not be met here, because if it were, the racial preference programs at Michigans institutions of higher education would be unconstitutional. At bottom, proponents of racial preferences cannot have it both ways. The practice of using racial preferences in higher education is constitutional on a limited basis precisely because (its proponents argued successfully to this Court in Grutter) its

25 purpose was not merely to benefit the minority but to provide all students, and society itself, the benefits of educational diversity. Todays proponents of racial preferences (many of whom argued for adoption of the diversity rationale in Grutter) now, for the purpose of shoe-horning their attack on a broad nondiscrimination amendment into the political restructuring doctrine established by Seattle and Hunter, claim that racial preference programs inure primarily for the benefit of minorities a claim that, if true, likely would have been fatal to the challenged racial preference program in Grutter. But because racial preferences are constitutional only when not designed primarily to benefit the minority, the political restructuring doctrine of Seattle and Hunter, to the extent it remains viable at all, cannot be triggered here. CONCLUSION Because the decision below relies on the continued viability of Seattle and Hunter, which should be overruled, and because, in the alternative, the political restructuring doctrine is inapplicable to a challenge to the MCRI, the Sixth Court should be reversed. Respectfully submitted,
ROBERT N. DRISCOLL* FRIEDLANDER MISLER, PLLC 5335 Wisconsin Avenue, Suite 600 Washington, DC 20015 (202) 872-0800 rdriscoll@dclawfirm.com

* Counsel of Record July 1, 2013