Beginning in the last decade of the 20th century, a series of state initiatives barring racial preferences in areas such as higher education were passed in California, Michigan, Washington, Arizona, Nebraska, Oklahoma, New Hampshire and Florida. In the Schuette decision, the US Supreme Court upheld them all in a case arising from the passage of Michigan’s Proposition 2. This result was foreshadowed in the California Supreme Court’s Coral Construction opinion upholding the state’s Proposition 209.

The initial push-back to Schuette and Coral Construction undoubtedly will be grounded in its emphasis on the validity of the democratic process to prescribe public policy. As will be seen, it is unclear whether racial preferences may be mandated by a “reversing” initiative or other state legislative process as easily as race-neutral policies they seek to correct. The prospects for a constitutional reversing measure are dim enough to require consideration of alternate routes to racial preferences.

Michigan’s Affirmative Action Policy as Interpreted in Schuette

Enacted in Michigan in 2006, Proposition 2 provided that no state educational institution should grant preferential treatment to any individual or group based on race, sex, color, ethnicity or national origin. The provision was embodied in section 26, Article I of the Michigan Constitution.The plurality opinion gives us the consensus views of the six-Justice majority. Justice Kennedy, its author, stated that the issue was not the permissibility of race-conscious admissions policy but rather whether voters could choose to prohibit consideration of racial preferences in public school admissions.

The plurality opinion found that the only possible theory under which Proposition 2 violated equal protection was the political structure doctrine. (Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) ; Hunter v. Erickson, 393 U.S. 385 (1969)) It explicitly rejected the broad interpretation of the political structure doctrine that any state action with a racial focus which makes it more difficult for certain racial minorities to achieve legislation in their interest is subject to strict scrutiny. Inter alia, Justice Kennedy noted that race-based classifications are inherently suspect and are themselves subject to strict scrutiny.

California’s Affirmative Action Policy

Enacted in California in 1996, Proposition 209 added section 31, Article I to the California Constitution. Subdivision (a) requires that the state 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 education. It tracks the language of the Michigan provision.

Proposition 209 has twice been upheld by the California Supreme Court and twice by the Ninth Circuit. (Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (2000); Coral Construction, Inc. v. City and County of San Francisco, 50 Cal. 4th 315 (Cal. 2010); Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. Cal. 1997); Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012))

In 2010, the most recent California state case, Coral Construction, resoundingly upheld Proposition 209. In Coral Construction, a city whose public contracting laws violated section 31 challenged its validity under the political structure doctrine, a judicial interpretation of the federal equal protection clause. San Francisco had awarded public contracts preferentially to minority- and women- owned businesses. These preferences, embodied in local ordinances antedating the passage of Proposition 209 in 1996, were justified on the basis of San Francisco legislative findings claiming continuing discrimination against these two groups. The California Supreme Court had, in Hi-Voltage in 2000, found that section 31 does not tolerate race- and gender-conscious preferences which the equal protection clause does not require but merely permits. In other words, the federal Constitution does not oblige the state to permit racial classifications the federal Constitution itself does not require.

Coral Construction quoted the Ninth Circuit’s Wilson opinion in resolving the issue: “That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.” The California Supreme Court found that section 31 did not violate equal protection and that it did not improperly disadvantage minority groups by distorting governmental processes in such a way as to place special burdens on minority groups’ ability to enact legislation beneficial to them.

Nothing in the political structure doctrine requires states to protect race- or gender-based preferences that equal protection does not require. Again quoting Wilson: “It is one thing to say that 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.”

The Prospects for Initiative or other Legislative Reversal of Race-Neutral Policy

In 2012, a California Senate proposal, Senate Constitutional Amendment No. 5, proposed amendment of section 31, Article I, of the California Constitution to allow state institutions of higher education to implement student recruitment and selection programs that are permissible under the equal protection clause of the Fourteenth Amendment.

It is likely that the predictable result of the forthcoming Schuette opinion, foreshadowed by Coral Construction, combined with the possible achievement of a two-thirds Democratic majority in the California Senate in 2013-2014, inspired the proposal. However, Asian-American Senatorial support for the measure evaporated in light of strong constituent objections to preferential admissions for African-American and Latino students and the measure is in abeyance.

Is the reversal of Proposition 31 as simple as the passage of another Constitutional amendment via initiative or legislative action that states that preferences permissible under the equal protection clause may be used? Proponents of SCA 5 obviously believed so, but Coral Construction and Schuette seem to imply that negating Proposition is not simply a matter of educational institutions’ implementation of all race-conscious measures permissible under equal protection.

It is important to remember that the predicate finding of Coral Costruction is that Proposition 209 is consistent with equal protection because under Wilson, a law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender and because the federal Constitution does not oblige the state to permit racial classifications the federal Constitution itself does not require.

“That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”

As noted above, Coral Construction cited Wilson on this point: “ While the [federal] Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms.”

As racial preferences are presumptively unconstitutional and tolerated only when narrowly tailored to serve compelling governmental interests, a law enacting them would have to withstand strict scrutiny, as “racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” (Grutter v. Bollinger, 539 US 306 (2003))

Schuette and Coral Construction, then, stand for the proposition that a generally applicable rule such as Proposition 209, forbidding preferences and discrimination not required by equal protection, does not have to be judged by strict scrutiny while one requiring peferences must pass muster under strict scrutiny. Nothing, then, allows implementation of race-conscious policies when merely permissible. SCA 5, citing no basis for racial discrimination, cannot be constitutionally valid, or to put it another way, no race-conscious policy is permissible unless specific injury to identifiable groups is shown, thereby making preferences constitutionally necessary. Therefore SCA 5 seems to afford no valid correction to Proposition 209 on its face because its proposed amendment offers no constitutional basis for resuming race-preferential treatment.

Moreover, the same principles govern post-Schuette attempts to amend state constitutional provisions such as section 31. Given that strict scrutiny dictates the evaluation of any such corrective measure seeking to implement race-conscious admissions policy, it is instructive to consider San Francisco’s findings which the California Supreme Court found wanting in Coral Construction. Would a race-preferential measure based on the Board’s findings about its necessity pass strict scrutiny?

In 2003, San Francisco re-enacted its minority- and women- based preferences and issued its legislative findings supporting the re-enactment. The Board of Supervisors relied on statistical studies showing that minorities and women were underutilized, both in San Francisco and the surrounding area, on testimony and oral histories recounting anecdotes of discrimination, and on social science materials. (S.F. Admin. Code, § 12D.A.2.The Board specifically found that minority and women contractors were listed on projects as subcontractors but never used; that additional non-minority, male contractors were used who were never listed on construction forms; and that fraudulent joint ventures involving minority- or women-owned and majority, men-owned firms were created.

Other condemned practices included: attempts by City personnel to improperly influence decisions against minorities and women; attempts by City personnel to blame minorities and women unjustifiably for project delays; the imposition of unnecessary minimum requirements on City contracts that act as a barrier to minorities and women; the failure by City departments to submit draft requests for proposals with sufficient time to permit the human rights review panel to ensure that adequate subcontracting goals had been set; attempts by City departments to circumvent the requirements by extending or modifying existing contracts rather than putting new contracts out to bid; the failure by City departments to comply with the prompt payment provisions which were meant to ensure that minorities and women do not suffer unnecessary financial hardships; and resistance by City prime contractors to providing the City with required subcontractor payment information, making it difficult for the City to ensure that prompt payment was made.

Minorities and women received a smaller share of certain types of contracts for the purchases of goods and services by the City than would be expected based on their availability and yet they received a larger share of other types of contracts, such as professional services and construction prime and subcontracts. Finally, the Board noted that “[m]inorities and women [had] report[ed] that project managers in many City Departments continue to operate under an “old boy network[‟] in awarding City prime contracts.”

The basic question, assuming that these conclusions are backed by credible evidence, is whether they would sustain race- or gender-preferential measures under strict scrutiny. The Board’s shaping of its arguments tracks closely an employment discrimination complaint, containing allegations of acts of discrimination, retaliation and a hostile contracting environment and offering a colorable prima facie case under McDonnell Douglas Corp. v. Green, 411 US 792 (1973).

Having stated that Proposition 209 needed no strict scrutiny analysis, Coral Construction obviously contains no substantial indication as to whether the Board’s preferential contracting standards could withstand strict scrutiny because the record supported it. Suffice to say, any litigation over the adequacy of the record under strict scrutiny will be as painful as any complex employment discrimination case, and just as costly.

The bottom line after Coral Construction and Schuette is that, aside from the obvious results, big and final losses in the highest appellate courts, the time and effort put in mounting these appeals were wasted resources which could have been better utilized in pursuing revisions of the race-neutral state constitutional amendments. While revising the offending constitutional provisions would require substantial political power, e.g. a two-thirds vote in the California Legislature to pass an ameliorative measure such as SCA 5, a legislative or initiative effort would have the advantage of allowing the proponents to make the record for preferences as required by equal protection case law.

Finally, the goal of establishing racial preferences in education, at least, has been facilitated by Grutter, as it acknowledges the validity of holistic admissions policies which utilize race as a factor in making decisions and this accords great discretion to education officials in determining selections when necessary under equal protection.