Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Court has also analyzed equal protection challenges to voter referenda approving restrictions or prohibitions on methods of addressing racial segregation.1 In such cases, the Court must consider if a measure that changes how desegregation is implemented “distorts the political process for racial reasons.” 2 In a 1982 case, Washington v. Seattle School District, the Court addressed circumstances in which Washington voters, following the Seattle school board’s implementation of a mandatory busing program to reduce the racial isolation of minority students, approved an initiative banning school boards from assigning students to any but the nearest or next nearest school offering the students’ course of study. The voter initiative included many exceptions that allowed the school board to assign students beyond nearby schools for various reasons, but notably had no exception that allowed the school board to bus students for desegregation purposes.3 That same year, the Court addressed a California case, in which California state courts had interpreted the California constitution to require school systems to eliminate both de jure and de facto segregation. In that case, Crawford v. Los Angeles Board of Education, voters approved an initiative that prohibited state courts from ordering busing unless the school segregation violated the Fourteenth Amendment, and a federal judge would have power to order busing under Supreme Court precedent.4

By a 5-4 margin, the Court held that the Washington measure was unconstitutional, but upheld the California measure with near unanimity of result if not of reasoning. The Court held that the Washington measure was unconstitutional because it imposed a different and more severe burden on school boards to address racial desegregation through busing than it imposed on any other educational policy.5 While local school boards could make education policy on a range of matters, they required state level approval to bus students for desegregation purposes.6 By imposing these greater burdens on school boards, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority.7

By contrast, the Court found no such racially discriminatory differences8 or motive in the California measure. There, the Court described the voter initiative as a simple repeal of a desegregation remedy that the federal Constitution did not require.9 “It would be paradoxical,” the Court observed, “to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.” 10 Having previously gone beyond the requirements of the federal Constitution, the Court concluded that the state was free to “pull back” to a standard that conformed to federal requirements.11 In addition, the lower court found no evidence indicating that voters were motivated by a discriminatory purpose in enacting the measure.12 “In sum,” the Court stated, “the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.” 13 Concurring in the result, Justice Harry Blackmun, joined by Justice William Brennan, distinguished the California measure because it merely repealed “the right to invoke a judicial busing remedy.” 14 Because legislatures, and not courts, create laws, in his view the measure did not reallocate decision making authority in constitutionally meaningful way.15

In its 2014 Schuette v. Coalition to Defend Affirmative Action decision,16 the Court considered the constitutionality of an amendment to the Michigan Constitution, approved by the state’s voters, to prohibit admissions preferences at state universities based on race, color, ethnicity, national origin, or sex.17 Six Justices agreed that the Michigan amendment did not violate the Equal Protection Clause, but Schuette produced no majority opinion on the legal rationale for that conclusion.18 A three-Justice plurality of the Schuette Court construed its earlier precedent to invalidate state voter initiatives on equal protection grounds only where the state action “had the serious risk, if not purpose, of causing specific injuries on account of race.” 19 Finding no similar risks of injury with regard to the Michigan amendment and no similar allegations of past discrimination in the Michigan university system,20 the plurality ultimately concluded there was no basis to set aside the state amendment.21 The plurality opinion questioned and rejected aspects of the Court’s analysis in Washington v. Seattle School District,22 while two other Justices argued that that decision, and Hunter v. Erickson,

Footnotes

1

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Crawford v. Bd. of Educ. of L.A., 458 U.S. 527 (1982). The decisions were in essence an application of Hunter v. Erickson, 393 U.S. 385 (1969).

2

Crawford, 458 U.S. at 541. Justice Harry Blackmun characterized, as violating the political process doctrine, “classifications that threaten the ability of minorities to involve themselves in the process of self-government,” including “reallocat[ing] decisionmaking authority.” Id. at 546 (Blackmun, J., concurring).

3

Washington, 458 U.S. at 462–63. See also id. at 471 (noting the district court’s finding that “the text of the initiative was carefully tailored to interfere only with desegregative busing.” ).

4

Crawford, 458 U.S. at 535–40 (1982).

5

Washington, 458 U.S. at 474–81. See id. at 474 ( “The initiative removes the authority to address a racial problem—and only a racial problem—from the existing decision-making body, in such a way as to burden minority interests.” ).

6

Id. at 480 ( “By placing power over desegregative busing at the state level, then, Initiative 350 plainly ‘differentiates between the treatment of problems involving racial matters and that afforded other problems in the same area.’” ) (citation omitted).

7

Washington, 458 U.S. at 470–82 (1982). Justice Harry Blackmun wrote the opinion of the Court, which Justices William Brennan, Byron White, Thurgood Marshall, and John Paul Stevens joined. Justices Lewis Powell, William Rehnquist, Sandra Day O’Connor, and Chief Justice Warren Burger dissented, essentially arguing that because the state was ultimately entirely responsible for all educational decisions, its choice to take back power it had delegated was permissible. Id. at 488. The Court reviewed an arguably analogous referendum measure (a state constitutional amendment) in Romer v. Evans, but declined to extend the political process doctrine beyond the context of race. 517 U.S. 620, 627 (1996). The provision barred state and local entities from applying antidiscrimination protections based on sexual orientation. The state supreme court concluded that the measure infringed on the rights of gays and lesbians to participate in the political process. While the United States Supreme Court found an equal protection violation because the law “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies,” it did not rely on the political process doctrine. See Romer, 517 U.S. at 627, 640 n.1 (Scalia, J., dissenting) (stating that the majority “implicitly rejects” the rationale that the amendment denied equal participation “in the political process” ).

8

Crawford, 458 U.S. at 536–37.

9

Id. at 539, 542.

10

Id. at 535.

11

Id. at 542.

12

Id. at 545.

13

Id. at 539.

14

Id. at 546 (Blackmun, J., concurring).

15

Id.

16

572 U.S. 291 (2014).

17

Id. at 299.

18

Justice Anthony Kennedy wrote the plurality opinion, which Chief Justice John Roberts and Justice Samuel Alito joined. Justice Antonin Scalia authored an opinion concurring in the judgment, which Justice Clarence Thomas joined. Id. at 316 (Scalia, J., concurring in judgment). Justice Stephen Breyer also wrote an opinion concurring in the judgment that the Michigan amendment did not violate the Equal Protection Clause. Specifically, Justice Stephen Breyer noted that (1) the amendment forbid racial preferences aimed at achieving diversity in education (as opposed to remedying past discrimination); (2) the amendment was aimed at ensuring that the democratic process (as opposed to the university administration) controlled with respect to affirmative action policy; and (3) individual school administrations, rather than elected officials, had adopted the underlying racial preference policy. Id. at 336 (Breyer, J., concurring in judgment). Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented. Id. at 341, 357–58 (Sotomayor, J., dissenting). Justice Elena Kagan recused herself.

19

Id. at 305.

20

Id. at 310.

21

Id. at 314.

22

Id. at 307–10.

23

Id. at 322 (Scalia, J., concurring in judgment).