throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2013
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v.
`COALITION TO DEFEND AFFIRMATIVE ACTION,
`INTEGRATION AND IMMIGRATION RIGHTS AND
`FIGHT FOR EQUALITY BY ANY MEANS NECESSARY
`
` (BAMN) ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SIXTH CIRCUIT
`
` No. 12–682. Argued October 15, 2013—Decided April 22, 2014
`
`After this Court decided that the University of Michigan’s undergradu-
`
`ate admissions plan’s use of race-based preferences violated the
` Equal Protection Clause, Gratz v. Bollinger, 539 U. S. 244, 270, but
`
`that the law school admission plan’s more limited use did not, Grutter
`v. Bollinger, 539 U. S. 306, 343, Michigan voters adopted Proposal 2,
`now Art. I, §26, of the State Constitution, which, as relevant here,
`prohibits the use of race-based preferences as part of the admissions
`process for state universities. In consolidated challenges, the District
`Court granted summary judgment to Michigan, thus upholding Pro-
`posal 2, but the Sixth Circuit reversed, concluding that the proposal
`
` violated the principles of Washington v. Seattle School Dist. No. 1,
`458 U. S. 457.
`Held: The judgment is reversed.
`701 F. 3d 466, reversed.
`JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO,
`
`
` concluded that there is no authority in the Federal Constitution or in
`
`
`this Court’s precedents for the Judiciary to set aside Michigan laws
`that commit to the voters the determination whether racial prefer-
`ences may be considered in governmental decisions, in particular
`with respect to school admissions. Pp. 4–18.
`
`(a) This case is not about the constitutionality, or the merits, of
`race-conscious admissions policies in higher education. Here, the
`principle that the consideration of race in admissions is permissible
`
`
`
`
`
`
`
`

`
`
`SCHUETTE v. BAMN
`
`
`Syllabus
`when certain conditions are met is not being challenged. Rather, the
`question concerns whether, and in what manner, voters in the States
`may choose to prohibit the consideration of such racial preferences.
`Where States have prohibited race-conscious admissions policies,
`universities have responded by experimenting “with a wide variety of
`
`
`
`alternative approaches.” Grutter, supra, at 342. The decision by
`
`
`Michigan voters reflects the ongoing national dialogue about such
`
`practices. Pp. 4–5.
`
`
`(b) The Sixth Circuit’s determination that Seattle controlled here
`extends Seattle’s holding in a case presenting quite different issues to
`reach a mistaken conclusion. Pp. 5–18.
`
`
`
`(1) It is necessary to consider first the relevant cases preceding
`
`
`Seattle and the background against which Seattle arose. Both Reit­
`man v. Mulkey, 387 U. S. 369, and Hunter v. Erickson, 393 U. S. 385,
`involved demonstrated injuries on the basis of race that, by reasons
`of state encouragement or participation, became more aggravated. In
`Mulkey, a voter-enacted amendment to the California Constitution
`
`prohibiting state legislative interference with an owner’s prerogative
`to decline to sell or rent residential property on any basis barred the
`challenging parties, on account of race, from invoking the protection
`of California’s statutes, thus preventing them from leasing residen-
`tial property. In Hunter, voters overturned an Akron ordinance that
`
`was enacted to address widespread racial discrimination in housing
`sales and rentals had forced many to live in “ ‘unhealthful, unsafe,
`unsanitary and overcrowded’ ” segregated housing, 393 U. S., at 391.
`In Seattle, after the school board adopted a mandatory busing pro-
`
`gram to alleviate racial isolation of minority students in local schools,
`
`voters passed a state initiative that barred busing to desegregate.
`
`This Court found that the state initiative had the “practical effect” of
`removing “the authority to address a racial problem . . . from the ex-
`isting decisionmaking body, in such a way as to burden minority in-
`
`terests” of busing advocates who must now “seek relief from the state
`
`
`legislature, or from the statewide electorate.” 458 U. S., at 474.
`Pp. 5–8.
`
`(2) Seattle is best understood as a case in which the state action
`
`had the serious risk, if not purpose, of causing specific injuries on ac-
`count of race as had been the case in Mulkey and Hunter. While
`
`
`there had been no judicial finding of de jure segregation with respect
`to Seattle’s school district, a finding that would be required today, see
`Parents Involved in Community Schools v. Seattle School Dist. No. 1,
`
`
`551 U. S. 701, 720–721, Seattle must be understood as Seattle under-
`stood itself, as a case in which neither the State nor the United
`States “challenge[d] the propriety of race-conscious student assign-
`
`ments for the purpose of achieving integration, even absent a finding
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`
`

`
`
`Cite as: 572 U. S. ____ (2014)
`
`
`Syllabus
`of prior de jure segregation.” 458 U. S. at 472, n. 15.
`
`Seattle’s broad language, however, went well beyond the analysis
`needed to resolve the case. Seizing upon the statement in Justice
`Harlan’s concurrence in Hunter that the procedural change in that
`case had “the clear purpose of making it more difficult for certain ra-
`cial and religious minorities to achieve legislation that is in their in-
`
`terest,” 385 U. S., at 395, the Seattle Court established a new and far-
`reaching rationale: Where a government policy “inures primarily to
`the benefit of the minority” and “minorities . . . consider” the policy to
`
`be “ ‘in their interest,’ ” then any state action that “place[s] effective
`decisionmaking authority over” that policy “at a different level of
`
`government” is subject to strict scrutiny. 458 U. S., at 472, 474.
`
`Pp. 8–11.
`(3) To the extent Seattle is read to require the Court to determine
`and declare which political policies serve the “interest” of a group de-
`fined in racial terms, that rationale was unnecessary to the decision
`in Seattle; it has no support in precedent; and it raises serious equal
`protection concerns. In cautioning against “impermissible racial ste-
`reotypes,” this Court has rejected the assumption that all individuals
`
`
`of the same race think alike, see Shaw v. Reno, 509 U. S. 630, 647,
`but that proposition would be a necessary beginning point were the
`
`Seattle formulation to control. And if it were deemed necessary to
`probe how some races define their own interest in political matters,
`still another beginning point would be to define individuals according
`to race. Such a venture would be undertaken with no clear legal
`standards or accepted sources to guide judicial decision. It would al-
`so result in, or impose a high risk of, inquiries and categories de-
`pendent upon demeaning stereotypes, classifications of questionable
`constitutionality on their own terms. Assuming these steps could be
`taken, the court would next be required to determine the policy
`realms in which groups defined by race had a political interest. That
`undertaking, again without guidance from accepted legal standards,
`would risk the creation of incentives for those who support or oppose
`certain policies to cast the debate in terms of racial advantage or dis-
`advantage. Adoption of the Seattle formulation could affect any
`number of laws or decisions, involving, e.g., tax policy or housing sub-
`
`sidies. And racial division would be validated, not discouraged.
`
`
`It can be argued that objections to the larger consequences of the
`Seattle formulation need not be confronted here, for race was an un-
`doubted subject of the ballot issue. But other problems raised by Se­
`
`attle, such as racial definitions, still apply. And the principal flaw in
`
`the Sixth Circuit’s decision remains: Here there was no infliction of a
`specific injury of the kind at issue in Mulkey and Hunter and in the
`history of the Seattle schools, and there is no precedent for extending
`
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`SCHUETTE v. BAMN
`
`
`Syllabus
`
`these cases to restrict the right of Michigan voters to determine that
`race-based preferences granted by state entities should be ended.
`
`
`The Sixth Circuit’s judgment also calls into question other States’
`
`long-settled rulings on policies similar to Michigan’s.
`
`
`Unlike the injuries in Mulkey, Hunter, and Seattle, the question
`
`here is not how to address or prevent injury caused on account of race
`but whether voters may determine whether a policy of race-based
`preferences should be continued. By approving Proposal 2 and there-
`
`by adding §26 to their State Constitution, Michigan voters exercised
`
`their privilege to enact laws as a basic exercise of their democratic
`power, bypassing public officials they deemed not responsive to their
`concerns about a policy of granting race-based preferences. The
`mandate for segregated schools, Brown v. Board of Education, 347
`U. S. 483, and scores of other examples teach that individual liberty
`has constitutional protection. But this Nation’s constitutional system
`also embraces the right of citizens to speak and debate and learn and
`then, as a matter of political will, to act through a lawful electoral
`
`
`process, as Michigan voters have done here. These precepts are not
`inconsistent with the well-established principle that when hurt or in-
`jury is inflicted on racial minorities by the encouragement or com-
`mand of laws or other state action, the Constitution requires redress
`by the courts. Such circumstances were present in Mulkey, Hunter,
`
`and Seattle, but they are not present here. Pp. 11–18.
`
`JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that §26 rightly
`
`
`stands, though not because it passes muster under the political-
`process doctrine. It likely does not, but the cases establishing that
`doctrine should be overruled. They are patently atextual, unadmin-
`
` istrable, and contrary to this Court’s traditional equal protection ju-
`risprudence. The question here, as in every case in which neutral
`state action is said to deny equal protection on account of race, is
`whether the challenged action reflects a racially discriminatory pur-
`
`pose. It plainly does not. Pp. 1–18.
` (a) The Court of Appeals for the Sixth Circuit held §26 unconstitu-
`
`
`tional under the so-called political-process doctrine, derived from
`Washington v. Seattle School Dist. No. 1, 458 U. S. 457, and Hunter v.
`
` Erickson, 393 U. S. 385. In those cases, one level of government ex-
`ercised borrowed authority over an apparently “racial issue” until a
`higher level of government called the loan. This Court deemed each
`revocation an equal-protection violation, without regard to whether
`there was evidence of an invidious purpose to discriminate. The re-
`lentless, radical logic of Hunter and Seattle would point to a similar
`
`conclusion here, as in so many other cases. Pp. 3–7.
`
`
`(b) The problems with the political-process doctrine begin with its
`
`
`triggering prong, which assigns to a court the task of determining
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
`

`
`
`Cite as: 572 U. S. ____ (2014)
`
`
`Syllabus
`
`whether a law that reallocates policymaking authority concerns a
`
`“racial issue,” Seattle, 458 U. S., at 473, i.e., whether adopting one
`position on the question would “at bottom inur[e] primarily to the
`benefit of the minority, and is designed for that purpose,” id., at 472.
`Such freeform judicial musing into ethnic and racial “interests” in-
`volves judges in the dirty business of dividing the Nation “into racial
`
`
`blocs,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610
`
`(O’Connor, J., dissenting), and promotes racial stereotyping, see
`
`
`Shaw v. Reno, 509 U. S. 630, 647. More fundamentally, the analysis
`
`misreads the Equal Protection Clause to protect particular groups, a
`construction that has been repudiated in a “long line of cases under-
`
`standing equal protection as a personal right.” Adarand Construc­
`
`tors, Inc. v. Peña, 515 U. S. 200, 224, 230. Pp. 7–12.
`
`
`
`(c) The second part of the Hunter-Seattle analysis directs a court to
`determine whether the challenged act “place[s] effective decisionmak-
`
`ing authority over [the] racial issue at a different level of govern-
`ment,” Seattle, supra, at 474; but, in another line of cases, the Court
`
`has emphasized the near-limitless sovereignty of each State to design
`its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tus­
`
`caloosa, 439 U. S. 60, 71. Taken to the limits of its logic, Hunter-
`Seattle is the gaping exception that nearly swallows the rule of struc-
`
`tural state sovereignty, which would seem to permit a State to give
`
`certain powers to cities, later assign the same powers to counties, and
`
`
`even reclaim them for itself. Pp. 12–15.
`
`(d) Hunter and Seattle also endorse a version of the proposition
`that a facially neutral law may deny equal protection solely because
`it has a disparate racial impact. That equal-protection theory has
`been squarely and soundly rejected by an “unwavering line of cases”
`holding “that a violation of the Equal Protection Clause requires
`state action motivated by discriminatory intent,” Hernandez v. New
`
`York, 500 U. S. 352, 372–373 (O’Connor, J., concurring in judgment),
`
`and that “official action will not be held unconstitutional solely be-
`
`cause it results in a racially disproportionate impact,” Arlington
`Heights v. Metropolitan Housing Development Corp., 429 U. S. 252,
`264–265. Respondents cannot prove that the action here reflects a
`racially discriminatory purpose, for any law expressly requiring state
`actors to afford all persons equal protection of the laws does not—
`cannot—deny “to any person . . . equal protection of the laws,” U. S.
`
`Const., Amdt. 14, §1. Pp. 15–17.
`JUSTICE BREYER agreed that the amendment is consistent with the
`Equal Protection Clause, but for different reasons. First, this case
`
`addresses the amendment only as it applies to, and forbids, race-
`
`conscious admissions programs that consider race solely in order to
`
`obtain the educational benefits of a diverse student body. Second, the
`
`
`
`
`
`5
`
`
`
`
`
`
`
`
`
`
`
`

`
`6
`
`
`
` SCHUETTE v. BAMN
`
`
`Syllabus
`Constitution permits, but does not require, the use of the kind of
`
`
` race-conscious programs now barred by the Michigan Constitution.
` It foresees the ballot box, not the courts, as the normal instrument
`
` for resolving debates about the merits of these programs. Third,
`
` Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School
`
`Dist. No. 1, 458 U. S. 457, which reflect the important principle that
`an individual’s ability to participate meaningfully in the political pro-
`cess should be independent of his race, do not apply here. Those cas-
`es involved a restructuring of the political process that changed the
`political level at which policies were enacted, while this case involves
`an amendment that took decisionmaking authority away from une-
`
` lected actors and placed it in the hands of the voters. Hence, this
`case does not involve a diminution of the minority’s ability to partici-
`pate in the political process. Extending the holding of Hunter and
`
`
`Seattle to situations where decisionmaking authority is moved from
`an administrative body to a political one would also create significant
`difficulties, given the nature of the administrative process. Further-
`more, the principle underlying Hunter and Seattle runs up against a
`competing principle favoring decisionmaking through the democratic
`
`process. Pp. 1–6.
`
` KENNEDY, J., announced the judgment of the Court and delivered an
`
`opinion, in which ROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J.,
`
`
`
`
` filed a concurring opinion. SCALIA, J., filed an opinion concurring in the
`
`
`judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion
`
`
` concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion,
`
`
`in which GINSBURG, J., joined. KAGAN, J., took no part in the considera-
`
`
`tion or decision of the case.
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 572 U. S. ____ (2014)
`
`Opinion of KENNEDY, J.
`
`
`1
`
`NOTICE: This opinion is subject to formal revision before publication in the
`
`
`preliminary print of the United States Reports. Readers are requested to
`
`
`
`notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
`ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
`that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 12–682
`_________________
`BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-
`
`GAN, PETITIONER v. COALITION TO DEFEND AF-
`
`FIRMATIVE ACTION, INTEGRATION AND IMMI-
`
`GRANT RIGHTS AND FIGHT FOR EQUALITY
`
`BY ANY MEANS NECESSARY (BAMN), ET AL.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE SIXTH CIRCUIT
`
`[April 22, 2014]
`
`JUSTICE KENNEDY announced the judgment of the Court
`
` and delivered an opinion, in which THE CHIEF JUSTICE
`
`
`and JUSTICE ALITO join.
`
`
`The Court in this case must determine whether an
`amendment to the Constitution of the State of Michigan,
`approved and enacted by its voters, is invalid under the
`Equal Protection Clause of the Fourteenth Amendment to
`the Constitution of the United States.
`
`In 2003 the Court reviewed the constitutionality of two
`admissions systems at the University of Michigan, one for
`its undergraduate class and one for its law school. The
`undergraduate admissions plan was addressed in Gratz v.
`Bollinger, 539 U. S. 244. The law school admission plan
`
`was addressed in Grutter v. Bollinger, 539 U. S. 306. Each
`admissions process permitted the explicit consideration of
`an applicant’s race. In Gratz, the Court invalidated the
`undergraduate plan as a violation of the Equal Protection
`Clause. 539 U. S., at 270. In Grutter, the Court found no
`
`
`
`
`
`
`
`
`
`

`
`2
`
`
`
`
`
` SCHUETTE v. BAMN
`
`Opinion of KENNEDY, J.
`
`constitutional flaw in the law school admission plan’s
`
`more limited use of race-based preferences. 539 U. S., at
`343.
`
`In response to the Court’s decision in Gratz, the univer-
`sity revised its undergraduate admissions process, but the
`revision still allowed limited use of race-based preferences.
`After a statewide debate on the question of racial prefer-
`ences in the context of governmental decisionmaking, the
`voters, in 2006, adopted an amendment to the State Con-
`stitution prohibiting state and other governmental entities
`in Michigan from granting certain preferences, including
`race-based preferences, in a wide range of actions and
`decisions. Under the terms of the amendment, race-based
`preferences cannot be part of the admissions process for
`state universities. That particular prohibition is central to
`the instant case.
`
`The ballot proposal was called Proposal 2 and, after it
`passed by a margin of 58 percent to 42 percent, the result-
`
`ing enactment became Article I, §26, of the Michigan
`
`Constitution. As noted, the amendment is in broad terms.
`
`Section 26 states, in relevant part, as follows:
`
`
`“(1) The University of Michigan, Michigan State
`University, Wayne State University, and any other
`public college or university, community college, or
`school district 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.
`
`“(2) The state shall not discriminate against, or
`grant preferential treatment to, any individual or
`group on the basis of race, sex, color, ethnicity, or na-
`tional origin in the operation of public employment,
`public education, or public contracting.
`
`“(3) For the purposes of this section ‘state’ includes,
`
`
`
`

`
`
`
`3
`
`
`
` Cite as: 572 U. S. ____ (2014)
`
`Opinion of KENNEDY, J.
`
`but is not necessarily limited to, the state itself, any
`city, county, any public college, university, or commu-
`nity college, school district, or other political subdivi-
`sion or governmental instrumentality of or within the
`State of Michigan not included in sub-section 1.”
`
`Section 26 was challenged in two cases. Among the
`plaintiffs in the suits were the Coalition to Defend Affirm-
`ative Action, Integration and Immigrant Rights and Fight
`for Equality By Any Means Necessary (BAMN); students;
`faculty; and prospective applicants to Michigan public
`universities.
` The named defendants included then-
`Governor Jennifer Granholm, the Board of Regents of the
`University of Michigan, the Board of Trustees of Michigan
`State University, and the Board of Governors of Wayne
`State University. The Michigan Attorney General was
`granted leave to intervene as a defendant. The United
`
`States District Court for the Eastern District of Michigan
`consolidated the cases.
`
`
`In 2008, the District Court granted summary judgment
`
`to Michigan, thus upholding Proposal 2. BAMN v. Regents
`of Univ. of Mich., 539 F. Supp. 2d 924. The District Court
`denied a motion to reconsider the grant of summary judg-
`ment. 592 F. Supp. 2d 948. A panel of the United States
`
`Court of Appeals for the Sixth Circuit reversed the grant
`of summary judgment. 652 F. 3d 607 (2011). Judge Gib-
`
`
`bons dissented from that holding. Id., at 633–646. The
`panel majority held that Proposal 2 had violated the prin-
`
`ciples elaborated by this Court in Washington v. Seattle
`School Dist. No. 1, 458 U. S. 457 (1982), and in the cases
`that Seattle relied upon.
`
`The Court of Appeals, sitting en banc, agreed with the
`panel decision. 701 F. 3d 466 (CA6 2012). The majority
`opinion determined that Seattle “mirrors the [case] before
`us.” Id., at 475. Seven judges dissented in a number of
`opinions. The Court granted certiorari. 568 U. S. ___
`
`
`
`
`
`
`
`
`
`

`
`4
`
`
`
` SCHUETTE v. BAMN
`
`Opinion of KENNEDY, J.
`
`
`
`
`
`
`(2013).
`
`Before the Court addresses the question presented, it is
`important to note what this case is not about. It is not
`about the constitutionality, or the merits, of race-conscious
`admissions policies in higher education. The considera-
`tion of race in admissions presents complex questions, in
`part addressed last Term in Fisher v. University of Texas
`at Austin, 570 U. S. ––– (2013). In Fisher, the Court did
`not disturb the principle that the consideration of race in
`admissions is permissible, provided that certain conditions
`are met. In this case, as in Fisher, that principle is not
`challenged. The question here concerns not the permissi-
`bility of race-conscious admissions policies under the
`Constitution but whether, and in what manner, voters in
`the States may choose to prohibit the consideration of
`
`racial preferences in governmental decisions, in particular
`
`with respect to school admissions.
`
`
`This Court has noted that some States have decided to
`
`prohibit race-conscious admissions policies. In Grutter,
`the Court noted: “Universities in California, Florida, and
`Washington State, where racial preferences in admissions
`are prohibited by state law, are currently engaged in
`experimenting with a wide variety of alternative ap-
`proaches. Universities in other States can and should
`draw on the most promising aspects of these race-neutral
`alternatives as they develop.” 539 U. S., at 342 (citing
`United States v. Lopez, 514 U. S. 549, 581 (1995)
`(KENNEDY, J., concurring) (“[T]he States may perform
`their role as laboratories for experimentation to devise
`various solutions where the best solution is far from
`clear”)). In this way, Grutter acknowledged the signifi-
`
`cance of a dialogue regarding this contested and complex
`policy question among and within States. There was
`
`
`recognition that our federal structure “permits ‘innovation
`and experimentation’” and “enables greater citizen ‘in-
`volvement in democratic processes.’” Bond v. United
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 572 U. S. ____ (2014)
`
`Opinion of KENNEDY, J.
`
`States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting
`
`Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)). While this
`case arises in Michigan, the decision by the State’s voters
`reflects in part the national dialogue regarding the wis-
`dom and practicality of race-conscious admissions policies
`
`in higher education. See, e.g., Coalition for Economic
`Equity v. Wilson, 122 F. 3d 692 (CA9 1997).
`
`In Michigan, the State Constitution invests independent
`boards of trustees with plenary authority over public
`universities, including admissions policies. Mich. Const.,
`Art. VIII, §5; see also Federated Publications, Inc. v. Board
`of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594
`N. W. 2d 491, 497 (1999). Although the members of the
`boards are elected, some evidence in the record suggests
`they delegated authority over admissions policy to the
`faculty. But whether the boards or the faculty set the
`specific policy, Michigan’s public universities did consider
`race as a factor in admissions decisions before 2006.
`
`In holding §26 invalid in the context of student admis-
`
`sions at state universities, the Court of Appeals relied in
`primary part on Seattle, supra, which it deemed to control
`
`the case. But that determination extends Seattle’s holding
`in a case presenting quite different issues to reach a con-
`clusion that is mistaken here. Before explaining this
`further, it is necessary to consider the relevant cases that
`
`preceded Seattle and the background against which Seat-
`
`tle itself arose.
`
`Though it has not been prominent in the arguments of
`the parties, this Court’s decision in Reitman v. Mulkey,
`387 U. S. 369 (1967), is a proper beginning point for dis-
`cussing the controlling decisions.
`In Mulkey, voters
`amended the California Constitution to prohibit any state
`legislative interference with an owner’s prerogative to
`decline to sell or rent residential property on any basis.
`Two different cases gave rise to Mulkey. In one a couple
`could not rent an apartment, and in the other a couple
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`6
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` SCHUETTE v. BAMN
`
`Opinion of KENNEDY, J.
`
`were evicted from their apartment. Those adverse actions
`were on account of race. In both cases the complaining
`parties were barred, on account of race, from invoking the
`protection of California’s statutes; and, as a result, they
`
`were unable to lease residential property. This Court
`
`concluded that the state constitutional provision was a
`denial of equal protection. The Court agreed with the
`California Supreme Court that the amendment operated
`to insinuate the State into the decision to discriminate by
`encouraging that practice. The Court noted the “immedi-
`ate design and intent” of the amendment was to “estab-
`lis[h] a purported constitutional right to privately discrim-
`inate.” Id., at 374 (internal quotation marks omitted and
`emphasis deleted). The Court agreed that the amendment
`“expressly authorized and constitutionalized the private
`right to discriminate.” Id., at 376. The effect of the state
`constitutional amendment was to “significantly encourage
`and involve the State in private racial discriminations.”
`Id., at 381. In a dissent joined by three other Justices,
`Justice Harlan disagreed with the majority’s holding. Id.,
`at 387. The dissent reasoned that California, by the action
`of its voters, simply wanted the State to remain neutral in
`this area, so that the State was not a party to discrimina-
`tion. Id., at 389. That dissenting voice did not prevail
`against the majority’s conclusion that the state action in
`question encouraged discrimination, causing real and
`specific injury.
`The next precedent of relevance, Hunter v. Erickson, 393
`
`U. S. 385 (1969), is central to the arguments the respond-
`ents make in the instant case. In Hunter, the Court for
`the first time elaborated what the Court of Appeals here
`
`styled the “political process” doctrine. There, the Akron
`City Council found that the citizens of Akron consisted of
`
`“‘people of different race[s], . . . many of whom live in
`circumscribed and segregated areas, under sub-standard
`unhealthful, unsafe, unsanitary and overcrowded condi-
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` Cite as: 572 U. S. ____ (2014)
`
`Opinion of KENNEDY, J.
`
` tions, because of discrimination in the sale, lease, rental
`
`and financing of housing.’” Id., at 391. To address the
`problem, Akron enacted a fair housing ordinance to pro-
`hibit that sort of discrimination.
`In response, voters
`amended the city charter to overturn the ordinance and to
`require that any additional antidiscrimination housing
`ordinance be approved by referendum. But most other
`ordinances “regulating the real property market” were not
`subject to those threshold requirements. Id., at 390. The
`plaintiff, a black woman in Akron, Ohio, alleged that her
`real estate agent could not show her certain residences
`because the owners had specified they would not sell to
`black persons.
`
`Central to the Court’s reasoning in Hunter was that the
`charter amendment was enacted in circumstances where
`widespread racial discrimination in the sale and rental of
`housing led to segregated housing, forcing many to live in
`“‘unhealthful, unsafe, unsanitary and overcrowded condi-
`tions.’” Id., at 391. The Court stated: “It is against this
`background that the referendum required by [the charter
`amendment] must be assessed.” Ibid. Akron attempted to
`characterize the charter amendment “simply as a public
`
`decision to move slowly in the delicate area of race rela-
`tions” and as a means “to allow the people of Akron to
`participate” in the decision. Id., at 392. The Court rejected
`Akron’s flawed “justifications for its discrimination,”
`
`justifications that by their own terms had the effect of
`acknowledging the targeted nature of the charter amend-
`ment. Ibid. The Court noted, furthermore, that the char-
`ter amendment was unnecessary as a general means of
`
`public control over the city council; for the people of Akron
`already were empowered to overturn ordinances by refer-
`
`endum. Id., at 390, n. 6. The Court found that the city
`charter amendment, by singling out antidiscrimination
`
`ordinances, “places special burden on racial minorities
`within the governmental process,” thus becoming as im-
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`8
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` SCHUETTE v. BAMN
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`Opinion of KENNEDY, J.
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`permissible as any other government action taken with
`the invidious intent to injure a racial minority. Id., at 391.
`Justice Harlan filed a concurrence. He argued the city
`charter amendment “has the clear purpose of making it
`more difficult for certain racial and religious minorities to
`achieve legislation that is in their interest.” Id., at 395.
`
`But without regard to the sentence just quoted, Hunter
`
`rests on the unremarkable principle that the State may
`not alter the procedures of government to target racial
`minorities. The facts in Hunter established that invidious
`discrimination would be the necessary result of the proce-
`dural restructuring. Thus, in Mulkey and Hunter, there
`was a demonstrated injury on the basis of race that, by
`reasons of state encouragement or participation, became
`more aggravated.
`
` Seattle is the third case of principal relevance here.
`There, the school board adopted a mandatory busing
`program to alleviate racial isolation of minority students
`in local schools. Voters who opposed the school board’s
`busing plan passed a state initiative that barred busing to
`desegregate. The Court first determined that, although
`“white as well as Negro children benefit from” diversity,
`the school board’s plan “inures primarily to the benefit of
`the minority.” 458 U. S., at 472. The Court next found
`that “the practical effect” of the state initiative was to
`“remov[e] the authority to address a racial problem—and
`only a racial problem—from the existing decisionmaking
`body, in such a way as to burden minority interests” be-
`cause advocates of busing “now must seek relief from the
`state legislature, or from the statewide electorate.” Id., at
`474. The Court therefore found that

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