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 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
updated 11:17 AM EST, Fri December 26, 2014
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
updated 8:19 AM EST, Fri December 26, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 10:05 AM EST, Fri December 26, 2014
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
updated 8:03 AM EST, Fri December 26, 2014
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
updated 8:12 AM EST, Fri December 26, 2014
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT