Skip to main content

Was Michigan ruling a case of colorblindness or willful blindness?

By Jonathan Turley, Yvette Butler and Vincent C. Cirilli
updated 7:04 PM EDT, Thu April 24, 2014
STORY HIGHLIGHTS
  • Jonathan Turley and his law students debate the ruling in the Michigan affirmative action case
  • Yvette Butler argues the amendment takes the issue out of the hands of the people
  • Vincent C. Cirilli counters that the will of the voters should not be ignored
  • But all agree: The ruling is a game changer

Editor's note: With the U.S. Supreme Court's ruling this week on Michigan's affirmative action policy in college admissions, CNN asked George Washington Law School professor Jonathan Turley to have two of his law students, Yvette Butler and Vincent C. Cirilli, debate the ruling. The opinions expressed in this commentary are solely those of the authors.

(CNN) -- In the aftermath of the decision in Schuette v. Coalition to Defend Affirmative Action, there is one thing (and perhaps only one thing) that most everyone agrees upon: It is a game changer.

The Background: A game changer
By Jonathan Turley

After decades of conflicting and increasingly convoluted decisions on the use of race as a criterion for university admissions, the Supreme Court ruled Tuesday that the citizens of Michigan could constitutionally ban the use of race and other criteria in the selection of students.

Jonathan Turley
Jonathan Turley

For some, the court affirmed the right to establish a colorblind selection process. For others, the court engaged in an act of willful blindness to the racial realities of society.

The court has been struggling in this area for decades. In 1977, in Regents of the University of California v. Bakke, the court allowed only a limited use of race for the purpose of achieving "diversity" in classes.

The Medical School at the University of California at Davis set aside 16 of the 100 seats for minorities. The court ruled it unconstitutional but was deeply divided on why -- a harbinger for the line of cases that would follow Bakke.

The court spent nearly the next 40 years spinning on the ice of affirmative action, unable to get traction or a clear direction.

The court's split decision in 2003 is illustrative. It was presented with two cases involving the use of race as a criterion in the undergraduate and the law school admissions processes at University of Michigan.

In one case, Gratz v. Bollinger, the court voted 6-3 that the university violated equal protection in the selection of students based on race and other criteria. It then ruled 5-4, in Grutter v. Bollinger, to uphold race criteria in the admissions process for Michigan Law School.

However, Associate Justice Sandra Day O'Connor stressed that the court "expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

Rev. Jackson: Race is a factor
Justice Thomas: We're too sensitive
Affirmative action 'hanging by a thread'

O'Connor's statement was ridiculed by many (including some on the court), but seemed to capture the fluidity of the court's position on the use of race.

In 2013, the court again seemed to produce a nuanced and uncertain decision in Fisher v. University of Texas at Austin, where the court rejected a lower court decision upholding the use of race in admissions at the University of Texas. However, it did not prohibit the use of race but rather sent back the case for the imposition of a more demanding test of "strict scrutiny."

These cases offered little hope that a "bright line" could be reached to bring resolution of the issue and meant that the court would continue to referee such matters. That line, however, may now have been reached in Schuette.

Michigan voters responded to the divided results in the Grutter and Gratz cases to bring their own clarity to the area. They passed a constitutional amendment that required an entirely colorblind process for selection at state schools (as well as barring schools from giving an advantage to some students based on other immutable characteristics like gender). By a vote of 6-2, the court ruled this week that citizens could do precisely that.

In so ruling, the court for the first time created an avenue that could end this longstanding controversy by vote of citizens. Seven states have already passed such rules, and this decision is likely to encourage others to follow.

In my seminar on the Constitution and the Supreme Court, my students and I debate leading cases each term and voted both on the merits and on our prediction as to the outcome in that "other" court.

So, in our recent vote, the GW Supreme Court voted overwhelmingly, 11-4, to reverse the Sixth Circuit and allow Michigan voters to make such a decision. The class also predicted the result in the case -- again by an 11-4 vote.

Here are two of our "GW justices" who viewed the case in manifestly different ways:

AGAINST: Ruling reflects 'sad history' of racial hurdles
By Yvette Butler

The importance of the court's decision is amplified by our sad history of placing hurdles to bar minorities from meaningful participation in the political process. Race-conscious policies, by the court's own admission, are highly controversial and should be confronted in the political process through healthy debate. However, the debate means little if no real action can be taken to implement what was decided through that debate.

Yvette Butler
Yvette Butler

The Michigan Constitution already contained a process for deciding university admissions policies. Michigan residents had ample voice through elections to choose members of a board that were an integral part of this process.

If the board members were not advancing the will of the people, residents could have made their voices heard through elections. This switch from a highly accessible and accountable board to a state constitutional amendment is an impermissible restructuring of the political process which will only serve to cripple the effectiveness of public debate and severely disadvantage the minority. By adopting a change on a state constitutional level, the issue is further removed from the hands of the people.

Even assuming that a healthy debate will take place, the decision places a significant hurdle in the way of any concrete action. This decision goes against clearly established Supreme Court precedent that it is unconstitutional to inhibit meaningful access to the political process for minorities. The Supreme Court plays a special role in our system. It must uphold constitutional rights, especially in the face of majority rule where that majority seeks to take a voice away from the minority.

FOR: Court should not undo the will of the people
By Vincent C. Cirilli

The political process yields favorable and unfavorable results. As long as the government does not interfere with the right to participate in the process, and as long as the results of that process are constitutional, the courts cannot take power from voters and undo the will of the people. The Supreme Court made clear that Schuette was not about the constitutional validity of affirmative action programs.

Vincent Cirilli
Vincent Cirilli

Instead, the case was about whether Michigan's constitutional amendment barring affirmative action interfered with the right to participate in the political process. The court correctly ruled that the process functioned properly.

What did that process entail? Michigan's Proposal 2, a statewide referendum, was approved by 58% of Michigan voters. The amendment the voters passed does not restrict speech, deny voting rights, or impose majoritarian barriers designed to prevent the minority from achieving its goals.

In other words, the amendment does not interfere with the political process. Voters are not silenced, the issues are not censored, and the debate surrounding affirmative action is not over.

If the role of the court is to perfect democracy, then the court fulfilled its role in not overturning Michigan's amendment. A ruling to the contrary would undermine democracy by removing this debate from the public sphere and leaving its resolution in the hands of nine unelected judges.

Some may disagree with Michigan's amendment. That is to be expected and encouraged. The political process is always ongoing and perhaps the issue will be revisited. In the meantime, the debate will continue, ideas will be shared, and the political process will march forward.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 3:41 PM EDT, Wed July 30, 2014
Stuart Gitlow says pot is addictive and those who smoke it can experience long-term psychiatric disease.
updated 12:45 PM EDT, Wed July 30, 2014
Gabby Giffords and Katie Ray-Jones say "Between 2001 and 2012, more women were shot to death by an intimate partner in our country than the total number of American troops killed in the Iraq and Afghanistan wars combined."
updated 7:57 PM EDT, Tue July 29, 2014
Alan Elsner says Secretary Kerry's early cease-fire draft was leaked and presented as a final document, which served the interests of hard-liners on both sides who don't want the Gaza war to stop.
updated 7:58 AM EDT, Wed July 30, 2014
Vijay Das says Medicare is a success story that could provide health care for everybody, not just seniors
updated 2:18 PM EDT, Wed July 30, 2014
Rick Francona says Israel seems determined to render Hamas militarily ineffective.
updated 1:43 PM EDT, Wed July 30, 2014
S.E. Cupp says the entrepreneur and Dallas Mavericks owner thinks for himself and refuses to be confined to an ideological box.
updated 9:11 AM EDT, Wed July 30, 2014
A Christian group's anger over the trailer for "Black Jesus," an upcoming TV show, seems out of place, Jay Parini says
updated 4:28 PM EDT, Wed July 30, 2014
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
updated 3:39 PM EDT, Wed July 30, 2014
Carol Dweck and Rachel Simmons: Girls tend to have a "fixed mindset" but they should have a "growth mindset."
updated 7:56 AM EDT, Mon July 28, 2014
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
updated 2:22 PM EDT, Sat July 26, 2014
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
updated 8:51 AM EDT, Mon July 28, 2014
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
updated 2:52 PM EDT, Mon July 28, 2014
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
updated 2:31 PM EDT, Mon July 28, 2014
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
updated 1:44 PM EDT, Wed July 30, 2014
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
updated 12:35 PM EDT, Mon July 28, 2014
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
updated 11:55 AM EDT, Sat July 26, 2014
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
updated 2:22 PM EDT, Sun July 27, 2014
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
updated 6:25 PM EDT, Thu July 24, 2014
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
updated 11:10 AM EDT, Fri July 25, 2014
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
updated 11:33 AM EDT, Sat July 26, 2014
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
updated 8:45 AM EDT, Fri July 25, 2014
John Sutter responds to criticism of his column on the ethics of eating dog.
updated 9:02 AM EDT, Fri July 25, 2014
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
updated 2:50 PM EDT, Fri July 25, 2014
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
updated 2:03 PM EDT, Thu July 24, 2014
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 8:09 AM EDT, Wed July 30, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT