Under Grutter and Gratz, the *only* justifiable basis for using affirmative action under strict scrutiny is to promote the compelling interest of diversity, and all the pedagogical benefits that stem from diversity. Diversity is something that everyone can benefit from. Not just minority groups. In other words, affirmative action, though it may help certain minorities, is permitted because of the benefit that inures to everyone.

This point, seems to have been completely lost on the attorneys arguing for Respondents in Schuette. Both lawyers were arguing, quite directly, that the justification for affirmative action was that it helped specific minorities. This was Justice Marshall’s view on Bakke that was never accepted by the Court.

I understand this case was brought under the political process theory of the Seattle school cases. In fairness to the lawyers, this position may have been necessitated by the odd political process theory that justified their case. They *needed* to argue that a benefit that could only inure to specific minorities was being taken away, for the Seattle School line of cases to work out. Because on its face, Michigan’s Prop 2 impacts everyone equally–race, gender, sex, etc. can’t be considered. In fact, the Asian American Legal Foundation actually filed a brief in support of Michigan, arguing that this race-neutral form of admissions will actually benefit Asian-Americans, who tend to be disadvantaged by affirmative action.

But all too often their arguments bled right back into this rationale. Consider a few exchanges from oral argument.

Driver’s opening statement (I can’t imagine anyone thought this would be a good idea) directly appealed to benefitting minorities as the original purpose of the Fourteenth Amendment.

MS. DRIVER: Mr. Chief Justice, and may it please the Court: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that’s expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

Huh? I suspect this appeals to the CAC brief filed last year in Fisher. But Huh? This is your opening? Scalia rips her argument apart, as this is entirely wrong under the Court’s precedents.

JUSTICE SCALIA: My goodness, I thought we’ve — we’ve held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only — only the blacks. But I thought we rejected that. You — you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

MS. DRIVER: I think it is — it’s a measure that’s an antidiscrimination measure.

JUSTICE SCALIA: Right.

MS. DRIVER: And it’s a measure in which the question of discrimination is determined not just by -­ by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.

JUSTICE SCALIA: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against — against whites, that’s okay?

MS. DRIVER: I think that -­

JUSTICE SCALIA: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

MS. DRIVER: No case of yours.

Of yours? Whose cases could she possibly be referring to?

I commented in another post that “This is what proponents of affirmative action think but aren’t supposed to say at the Supreme Court.” The Respondents believe that the 14th amendment specifically empowers the government to protect minorities from white people through racial preference, rather than what it says–to ensure equal protections of the law. Driver’s mistake was saying this in Court (or not).

Rosenbaum, arguing for the Cantrell respondents, sparred with Justice Scalia over whether Prop 2 was a “racial classification” or a “prohibition of a racial classification.” He even made a reference to Plessy. But more importantly, they clashed over whether the Fourteenth Amendment allows the government to take steps to help minorities, or in the view of Scalia, such actions are explicitly prohibited.

MR. ROSENBAUM: It would, Your Honor, because — because it would be building in this explicitly facial racial classification into the State Constitution. The problem are the separate and unequal systems that are being used to deal with race. And separate and unequal, under the 14th Amendment, shouldn’t come within ten feet of race.

JUSTICE SCALIA: It’s not a racial classification. You should not refer to it that way.

MR. ROSENBAUM: It is a racial -­

JUSTICE SCALIA: It’s the prohibition of racial classifications.

MR. ROSENBAUM: No, Your Honor.

JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?

MR. ROSENBAUM: No, Your Honor. The problem with Proposal 2 is that it is — just as in Hunter, just as in Hunter — it is an explicitly facial racial classification. It singles out race for different treatment. My goodness, this was borne — this campaign started three days after Grutter itself. The author said the purpose of it was to get rid of racial preferences.

JUSTICE SCALIA: Well, if that’s how you’re using racial classification, I thought it meant, you know, it’s directed at blacks or Asians -­

MR. ROSENBAUM: No.

JUSTICE SCALIA: — or — no. In that sense, the 14th Amendment itself is a racial classification, right?

Under the Respondent’s view, a law that mandates race neutrality is in and of itself a racial classification. Scalia’s point, according to Scalia’s view of the 14th Amendment, is that the Equal Protection clause takes out of the hands of the government the power to enforce “equality” through racial preferences. If Rosenbaum is correct, then the 14th Amendment itself must be a racial classification. (This is a deep point that I think was not discussed much).

It also seems that the some of the Justices adhere to this alternate view of affirmative action. For example, Justice Breyer frames the argument in terms of “plus” and “minus.” Plus would be taking affirmative action to promote equality. Negative would be adopting a policy of race-neutrality–not considering race–to promote equality.

JUSTICE BREYER: Some people think that there is a difference between the plus and the minus. Some judges differ on that point. Some agree sort of with you, and some agree sort of not. All right? Let’s think of those who agree sort of, and then I have a question. And you know this area better than I.

Relatedly, Justice Ginsburg’s question articulates how the views for affirmative action have changed (although not in doctrine):

JUSTICE GINSBURG: — isn’t the position that was taken in Seattle derived from a different view of the Equal Protection Clause? I mean, strict scrutiny was originally put forward as a protection for minorities — a protection for minorities against hostile disadvantageous legislation. And so the view then was we use strict scrutiny when the majority is disadvantaging the minority. So you do, under the Carolene Products view, you do focus on race and you ask, is the minority being disadvantaged? If that were the view, then I suppose we would not be looking at this, well, the criterion is race and wherever the disadvantage falls, whether a majority or minority, it’s just the same. That wasn’t the original idea of when strict scrutiny is appropriate. So if we were faithful to that notion, that it is — measures a disadvantage the — the minority that get strict scrutiny.

Justice Scalia, obviously, does not. After dropping his favorite phrase, “my goodness,” Nino says that the 14th Amendment prohibits benefits to specific minorities, rather than general equality.

JUSTICE SCALIA: Why — why doesn’t the Fourth Amendment violate the rule you’re saying — or the 14th Amendment violate the rule that you’re proposing? I mean, I’m a minority and I want laws that favor my minority. Not just in university; everywhere. My goodness, I can’t have that through the normal legislative process. I have to get a constitutional amendment to do it, right?

I’ll have more posts about Schuette soon. This case had fascinating arguments.

Update: A University of Michigan Law Professor says what supporters of Affirmative Action aren’t supposed to say:

So far, the Supreme Court has permitted affirmative action, but with limitations. The judicial decisions on this issue have focused on the educational value of having diversity in the student body. But I have observed from my experience that racial diversity has virtually no effect on educational quality and is not the real rationale for the affirmative action policy.

In my view, the true rationale for affirmative action comes from the view that it is problematic – perhaps even intolerable – to have a significant segment of society left out of the mainstream of prosperity and power. If Americans are to live harmoniously together, all parts of society should participate in its important functions. That justification explains why preference is really given to minorities: They also should be able to participate in the American dream.

Universities contend that a diverse student body improves the educational quality of classes and that a critical mass of minority students is needed for that purpose. Having diverse students is said to bring different perspectives and viewpoints into the classroom. But in fact, from what I’ve seen, ethnic and racial diversity has very little effect, if any, on the quality of classes. “Diversity” became a useful tool to sway the courts and public opinion to support affirmative action, but it looks to me like more of a rationalization than a rationale for the program.