Affirmative Action and Process Doctrine

Ben Cohen
Conservatives may be disappointed with the upcoming decision in Schuette v. Coalition, (the Supreme Court case involving Michigan’s ban on racial preferences). Unfortunately, the appellate court’s decision to strike down Michigan’s ban had basis in precedent. Hunter v. Erickson established something known as process doctrine, which holds that laws which reorder the political process to obstruct the ability of minorities to enact legislation violate the equal protection clause. Critics of the appellate court’s decision largely ignored this precedent. While the court could overturn the appellate court’s decision, while leaving process doctrine intact; it shouldn’t.

In 1964, the Akron City Council enacted a fair housing ordinance barring racial and religious discrimination in the housing market. Afterwards, voters passed a referendum requiring that any legislation dealing with housing discrimination be approved by a majority of voters. Because this referendum applied to laws already on the books, it voided the fair housing ordinance.

When a realtor declined to show Nellie Hunter a number of houses, because the owners requested that they “not be shown to Negroes,” Nellie Hunter sued. Eventually the case reached the Supreme Court, which ruled that the referendum violated the equal protection clause. The court reasoned that the referendum had reordered the political process in a way “that burdened the ability of minorities to enact legislation on their behalf.”

More than four decades later, an appellate court overturned Michigan’s proposition two based on similar reasoning. By modifying the Michigan state constitution to ban racial preferences the voters had reordered the political process to make it more difficult for minorities “to achieve beneficial legislation.” Whereas those seeking preferences for legacies or athletes could simply lobby the board of trustees, those seeking preferences based on race would have to amend the Michigan state constitution.

In his questioning of ACLU attorney Mark Rosenblum, Justice Samuel Alito indicated a desire to overturn the appellate ruling on narrow grounds, leaving process doctrine intact. Other critics of the ruling have expressed similar sentiments. But this presents two problems; first, process doctrine can be read in a way that supports the appellate court’s ruling; second, process doctrine is itself legally dubious and should be overturned.

Section one of the 14th Amendment does two things; first, it grants citizenship to those born within the United States and subject to its laws; second, it guarantees equality before the law for all citizens. The fear that in a democracy the majority will oppress the minority is an old and legitimate one. But the 14th Amendment offers minorities equal protection as citizens, not equal protection as minorities. Not only does it not reference any special protection for minority interests, but it doesn’t even specifically reference race, religion, or ethnicity, as protected categories.

Would process doctrine actually make sense as law? As much as tyranny of the majority has plagued democracy, American democracy suffers at least as much from tyranny of the faction. Small groups that care intensely about a pet issue often distort our political process at the expense of the common good -- think ethanol subsidies. A law tilting the political process even further in favor of minority interests would not make sense as policy. In its present form, process doctrine would allow a judge to throw out virtually any law that negatively impacted any group the court deems in need of protection.

The high court may find it tempting to reverse the lower court on narrow grounds, leaving process doctrine intact, but they should resist this urge. Process doctrine itself is the problem; it legally privileges certain groups, and enshrines “group rights” in our constitution. The court needs to reassert the true meaning of the 14th amendment: equal rights before the law.

Conservatives may be disappointed with the upcoming decision in Schuette v. Coalition, (the Supreme Court case involving Michigan’s ban on racial preferences). Unfortunately, the appellate court’s decision to strike down Michigan’s ban had basis in precedent. Hunter v. Erickson established something known as process doctrine, which holds that laws which reorder the political process to obstruct the ability of minorities to enact legislation violate the equal protection clause. Critics of the appellate court’s decision largely ignored this precedent. While the court could overturn the appellate court’s decision, while leaving process doctrine intact; it shouldn’t.

In 1964, the Akron City Council enacted a fair housing ordinance barring racial and religious discrimination in the housing market. Afterwards, voters passed a referendum requiring that any legislation dealing with housing discrimination be approved by a majority of voters. Because this referendum applied to laws already on the books, it voided the fair housing ordinance.

When a realtor declined to show Nellie Hunter a number of houses, because the owners requested that they “not be shown to Negroes,” Nellie Hunter sued. Eventually the case reached the Supreme Court, which ruled that the referendum violated the equal protection clause. The court reasoned that the referendum had reordered the political process in a way “that burdened the ability of minorities to enact legislation on their behalf.”

More than four decades later, an appellate court overturned Michigan’s proposition two based on similar reasoning. By modifying the Michigan state constitution to ban racial preferences the voters had reordered the political process to make it more difficult for minorities “to achieve beneficial legislation.” Whereas those seeking preferences for legacies or athletes could simply lobby the board of trustees, those seeking preferences based on race would have to amend the Michigan state constitution.

In his questioning of ACLU attorney Mark Rosenblum, Justice Samuel Alito indicated a desire to overturn the appellate ruling on narrow grounds, leaving process doctrine intact. Other critics of the ruling have expressed similar sentiments. But this presents two problems; first, process doctrine can be read in a way that supports the appellate court’s ruling; second, process doctrine is itself legally dubious and should be overturned.

Section one of the 14th Amendment does two things; first, it grants citizenship to those born within the United States and subject to its laws; second, it guarantees equality before the law for all citizens. The fear that in a democracy the majority will oppress the minority is an old and legitimate one. But the 14th Amendment offers minorities equal protection as citizens, not equal protection as minorities. Not only does it not reference any special protection for minority interests, but it doesn’t even specifically reference race, religion, or ethnicity, as protected categories.

Would process doctrine actually make sense as law? As much as tyranny of the majority has plagued democracy, American democracy suffers at least as much from tyranny of the faction. Small groups that care intensely about a pet issue often distort our political process at the expense of the common good -- think ethanol subsidies. A law tilting the political process even further in favor of minority interests would not make sense as policy. In its present form, process doctrine would allow a judge to throw out virtually any law that negatively impacted any group the court deems in need of protection.

The high court may find it tempting to reverse the lower court on narrow grounds, leaving process doctrine intact, but they should resist this urge. Process doctrine itself is the problem; it legally privileges certain groups, and enshrines “group rights” in our constitution. The court needs to reassert the true meaning of the 14th amendment: equal rights before the law.