Schuette v. Coalition to Defend Affirmative Action Brief for Respondents

    t

In  T h e

Supreme Court of tlje SJnttet) States

________________No. 12-682________________

B il l  S c h u e t t e , M ic h ig a n  A t t o r n e y  G e n e r a l ,

Petitioner,
v.

C o a l it io n  to  D e f e n d  A f f ir m a t iv e  A c t io n , In t e g r a t io n  
a n d  Im m ig r a n t  R ig h t s  a n d  F ig h t  fo r  E q u a l it y  B y  A n y  

M e a n s  N e c e s s a r y  (BAMN), et al,
-AND-

C h a s e  M . Ca n t r e l l , et al.,
Respondents.

O n  W r it  o f  C e r t io r a r i t o  t h e  U n it e d  S t a t e s  C o u r t  of  
A p p e a l s  f o r  t h e  S ix t h  C ir c u it

BRIEF FOR RESPONDENTS 
CHASE CANTRELL ET AL.

La u r e n c e  H. Tribe 
Hauser Hall 420 
1575 Massachusetts Avenue 
Cambridge, MA 02138 
(617) 495-1767

Jo sh u a  I. Civin  
NAACP Legal Defense & 

Educational Fund, Inc. 
1441 I Street, NW,

10th Floor
Washington, DC 20005 
(202) 682-1300

M a r k  D. Ro se n b a u m  
Counsel of Record 

David  B. Sapp 
ACLU Foundation of 

Southern California 
1313 West Eighth Street 
Los Angeles, CA 90017 
(213) 977-9500 
mrosenbaum@ACLU-SC.org

Ka r in  A. D eMa si

N icole  M. Peles

Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
(212) 474-1000

ADDITIONAL COUNSEL LISTED ON INSIDE COYTIR 
August 23, 2013

mailto:mrosenbaum@ACLU-SC.org


E r w in  Ch e m e r in s k y  
University Of California, 

Irvine School Of Law 
401 East Peltason Drive, 

Suite 1000 
Irvine, CA 92697 
(949) 824-7722

S h e r r il y n  If il l  
D a m o n  T . H e w it t  
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006 
(212) 965-2200

S t e v e n  R. S h a p ir o  
D e n n is  D . Pa r k e r  
ACLU Foundation 
125 Broad Street,
18th Floor
New York, NY 10004 
(212) 549-2500

M e l v in  B u t c h  
H o l l o w e l l , J r .

Detroit Branch NAACP 
8220 Second Avenue 
Detroit, MI 48202 
(313) 980-0102

K a r y  L. M o ss  
M ic h a e l  J. St e in b e r g  
M a r k  P. Fa n c h e r  
ACLU Fund Of Michigan 
2966 Woodward Avenue 
Detroit, MI 48201 
(313) 578-6814

Je r o m e  R. W a t s o n  
Miller, Canfield, Paddock 

And Stone, P.L.C.
150 West Jefferson,

Suite 2500 
Detroit, MI 48226 
(313) 963-6420

D a n ie l  P. T o k a ji 
The Ohio State University 

Moritz College Of Law 
55 West 12th Avenue 
Columbus, OH 43206 
(614) 292-6566

Counsel for Cantrell Respondents



1

QUESTION PRESENTED

Whether a state violates the Equal Protection 
Clause by amending its constitution to prohibit 
race- and sex-based discrimination or preferential 
treatment in public-university admissions decisions.



11

PARTIES TO THE PROCEEDING

Petitioner is Bill Schuette, Michigan Attorney 
General. Respondents are Chase Cantrell, M.N., a 
minor child, by Karen Nestor, Mother and Next 
Friend, Karen Nestor, Mother and Next Friend of 
M.N., a minor child, C.U., a minor child, by Paula 
Uche, Mother and Next Friend, Paula Uche, Mother 
and Next Friend to C.U., a minor child, Joshua Kay, 
Sheldon Johnson, Matthew Countryman, M.R., a 
minor child, by Brenda Foster, Mother and Next 
Friend, Brenda Foster, Mother and Next Friend of 
M.R., a minor child, Bryon Maxey, Rachel Quinn, 
Kevin Gaines, Dana Christensen, T.J., a minor child, 
by Cathy Alfaro, Guardian and Next Friend, Cathy 
Alfaro, Guardian and Next Friend of T.J., a minor 
child, S.W., a minor child, by Michael Weisberg, 
Father and Next Friend, Michael Weisberg, Father 
and Next Friend of S.W., a minor child, Casey 
Kasper, Sergio Eduardo Munoz, Rosario Ceballo, 
Kathleen Canning, Edward Kim, M.C.C., II, a minor 
child, by Carolyn Carter, Mother and Next Friend, 
Carolyn Carter, Mother and Next Friend of M.C.C., 
II, a minor child, J.R., a minor child, by Matthew 
Robinson, Father and Next Friend, and Matthew 
Robinson, Father and Next Friend of J.R., a minor 
child (together, the “Cantrell Respondents”).

In the consolidated case, there is a separate 
group of Respondents, which includes the Coalition 
to Defend Affirmative Action, Integration and 
Immigrant Rights and Fight for Equality by Any 
Means Necessary (BAMN), United for Equality and 
Affirmative Action Legal Defense Fund, Rainbow 
Push Coalition, Calvin Jevon Cochran, Lashelle 
Benjamin, Beautie Mitchell, Denesha Richey, Stasia



iii

Brown, Michael Gibson, Christopher Sutton, Laquay 
Johnson, Turqoise Wiseking, Brandon Flannigan, 
Josie Human, Issamar Camacho, Kahleif Henry, 
Shanae Tatum, Maricruz Lopez, Alejandra Cruz, 
Adarene Hoag, Candice Young, Tristan Taylor, 
Williams Frazier, Jerell Erves, Matthew Griffith, 
Lacrissa Beverly, D’Shawn Featherstone, Danielle 
Nelson, Julius Carter, Kevin Smith, Kyle Smith, 
Paris Butler, Touissant King, Aiana Scott, Allen 
Vonou, Randiah Green, Brittany Jones, Courtney 
Drake, Dante Dixon, Joseph Henry Reed, AFSCME 
Local 207, AFSCME Local 214, AFSCME Local 312, 
AFSCME Local 386, AFSCME Local 1642, AFSCME 
Local 2920, and the Defend Affirmative Action Party 
(together, the “Coalition Respondents”)- Additional 
defendants below are the Regents of the University 
of Michigan, the Board of Trustees of Michigan State 
University, the Board of Governors of Wayne State 
University, Mary Sue Coleman, Irvin D. Reid, and 
Lou Anna K. Simon.



IV

TABLE OF CONTENTS

Page

QUESTION PRESENTED............................................. i

PARTIES TO THE PROCEEDING............................. ii

TABLE OF AUTHORITIES......................................... vi

INTRODUCTION............................................................1

STATEMENT..................................................................7

SUMMARY OF ARGUMENT..................................... 13

ARGUMENT.................................................................19

I. THE POLITICAL RESTRUCTURING
DOCTRINE IS CONSISTENT WITH, AND 
A NECESSARY COMPONENT OF, THIS 
COURT’S EQUAL PROTECTION 
JURISPRUDENCE............................................... 19

A. This Court Has Long Recognized That 
the “Peculiar and Disadvantageous” 
Treatment of Racial Matters in the 
Political Process Is a Racial 
Classification Subject to Strict
Scrutiny......................................................... 19

B. Structuring the Political Process Based
on Racial Considerations Is 
Particularly Likely To Underscore That 
Race Is a Significant and Outcome- 
Determinative Factor Within Our 
Political System............................................27



V

C. The Political Restructuring Doctrine 
Applies to All Manipulations of the 
Political Process That Cannot Be 
Explained on Grounds Other Than
Race................................................................33

D. The Political Restructuring Doctrine
Entails Straightforward Factual 
Inquiries and Is Integral to a Coherent 
Equal Protection Doctrine............................36

II. PROPOSAL 2 VIOLATES THE EQUAL
PROTECTION CLAUSE UNDER THE 
POLITICAL RESTRUCTURING 
DOCTRINE............................................................ 47

A. Proposal 2 Created a Racial
Classification................................................. 47

B. Proposal 2 Does Not Advance a
Compelling Interest...................................... 56

C. Proposal 2 Is Not Narrowly Tailored.........57

III. STARE DECISIS COUNSELS AGAINST
THE DRAMATIC STEP OF OVERRULING 
OR SUBSTANTIALLY LIMITING THE 
POLITICAL RESTRUCTURING 
DOCTRINE............................................................ 60

Page

CONCLUSION 62



TABLE OF AUTHORITIES

Page(s)
Cases

Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995)..............................................passim

Allen v. State Bd. of Elections, 393 U.S.
544 (1969)............................................................... 25

Avery v. Midland. Cnty., 390 U.S. 474
(1968)......................................................................  25

Bd. of Regents of the Univ. of Mich. v.
Auditor Gen., 132 N.W. 1037 (Mich.
1911).........................................................................53

Bush v. Vera, 517 U.S. 952 (1996).....................passim

City of Arlington v. FCC, 133 S. Ct. 1863
(2013)........................................................................45

City of Richm ond v. J.A. Croson Co., 488
U.S. 469 (1989)...................................  28, 45, 51, 57

Crawford u. Bd. of Educ., 458 U.S. 527
(1982)..................................................................  5, 42

Easley v. Crornartie, 532 U.S. 234 (2001).........  22, 56

Fisher v. Univ. of Tex., 133 S. Ct. 2411
(2013)............................................................... passim

Gornillion v. Light foot, 364 U.S. 339 (1960).....  25, 38

Gordon v. Lance, 403 U.S. 1 (1971)...........................22

vi



Gratz v. Bollinger, 539 U.S. 244 (2003)..................... 7

Grutter v. Bollinger, 539 U.S. 306 (2003)........ passim

Guinn v. United States, 238 U.S. 347
(1915)...................................................................... 25

Hormel v. Helvering, 312 U.S. 552 (1941)............... 56

Hunter v. Erickson, 393 U.S. 385 (1969)..........passim

Hunter v. City of Pittsburgh, 207 U.S. 161
(1907)......................................................................  39

Hunter v. Underwood, 471 U.S. 222 (1985)..............  49

James v. Valtierra, 402 U.S. 137 (1971)............ 38, 59

League of United Latin Am. Citizens v.
Perry, 548 U.S. 399 (2006)............................. 24, 25

Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y.
1970), aff’d, 403 U.S. 935 (1971)..................  20, 41

Miller v. Johnson, 515 U.S. 900 (1995)............. 22, 30

Mistretta v. United States, 488 U.S. 361
(1989)........................................................................54

New State Ice Co. v. Liebmann, 285 U.S.
262 (1932)...............................................................  39

Parents Involved in Cmty. Sell. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701 (2007).......... passim

V ll

Page(s)



vm

Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256 (1979).........................................................  37, 50

Planned Parenthood v. Casey, 505 U.S.
833 (1992)....................... ....................................... 60

Reynolds v. Sims, 377 U.S. 533 (1964).............. 25, 26

Romer v. Evans, 517 U.S. 620 (1996)..................  4, 50

Shaw v. Reno, 509 U.S. 630 (1993)...................passim

Singleton v. Wulff, 428 U.S. 106 (1976)...................  56

United States v. Carotene Prods. Co., 304
U.S. 144 (1938)................................................. 27, 35

Village of Arlington Heights v. Metro.
Housing Dev. Corp., 429 U.S. 252
(1977)............................................................... passim

Washington v. Davis, 426 U.S. 229 (1976)..............37

Washington v. Seattle Sch. Dist. No. 1, 458
U.S. 457 (1982)............................................... passim

Wright v. Rockefeller, 376 U.S. 52 (1964)................25

Statutes & Rules

Mich. Const, art. I, § 26........................................... 9, 48

Mich. Const, art. VIII, § 5 ......................................... 7, 52

Mich. Const, art. XII, §§ 1 & 2 ...................................55

Page(s)



IX

Mich. Comp. Laws Ann. §§ 390.3-.5 (West
2011)....................................................................... 52

Other Authorities

League of Women Voters 2005 General 
Election Voter Guide, available at 
http://www.lwvka.org/guide04/regents. 
htm l.........................................................................53

Page(s)

http://www.lwvka.org/guide04/regents


INTRODUCTION

Before Proposal 2 was enacted in November 
2006, the Michigan Constitution granted plenary 
authority over all matters relating to the state’s 
public universities, including authority to establish 
admissions criteria, to each university’s Board of 
Regents. Supporters of Proposal 2 mobilized in 
direct reaction to this Court’s decision in Grutter v. 
Bollinger, 539 U.S. 306, 340, 343 (2003), holding that 
Michigan Law School’s policy of considering race as 
one factor among many in a holistic, individualized 
review of admissions applications was 
constitutionally permissible. Proposal 2’s supporters 
sought not only to repeal the constitutionally 
permissible race-conscious admissions policies that 
universities had developed in the wake of Grutter, 
instead, they sought to permanently ban such 
policies by embedding a prohibition against them in 
the state constitution and thereby changing—along 
explicitly racial lines—the political structure 
traditionally employed by the State of Michigan to 
make higher educational policy.

Following Proposal 2’s enactment, the Boards of 
Regents are prohibited by the state constitution from 
retaining their constitutionally permissible race­
conscious admissions programs or from adopting new 
constitutionally permissible policies. They retain 
plenary authority over all other matters, however, 
including whether to include countless other 
constitutionally permissible criteria in their 
admissions programs. Consequently, a student who 
believes that her family’s alumni connections (or 
experience as a member of a Christian service group 
or living in Michigan’s Upper Peninsula) should



2

receive greater weight in the admissions process can 
advocate to the Boards of Regents—or to the 
university officials to whom they have delegated 
authority over admissions policy—with a chance of 
success. In contrast, post-Proposal 2, if a student 
believes that the admissions process should consider 
how she would contribute to promoting diversity 
within the university community based on her 
experiences as an African-American woman, she has 
no choice but to undertake the far more onerous 
process of amending the state constitution to 
authorize again constitutionally permissible race­
conscious admissions programs.

Launched by opponents of constitutionally 
permissible race-conscious admissions programs 
after they lost in Grutter, Proposal 2 explicitly refers 
to race and was unquestionably about race. It not 
only prohibited constitutionally permissible race­
conscious admissions programs but also made it 
substantially more onerous for proponents of such 
programs to advocate their adoption successfully in 
the future, thereby (among other consequences) 
reducing the enrollment of underrepresented 
minorities on individual campuses. Based on 
overwhelming evidence, the Sixth Circuit adopted 
the district court’s factual findings that Proposal 2 
effected a significant change in the ordinary political 
process and that it was fundamentally about race. 
Relying on Washington v. Seattle School District 
No. 1, 458 U.S. 457 (1982), and Hunter v. Erickson, 
393 U.S. 385 (1969), the Sixth Circuit, sitting en 
banc, concluded that Proposal 2 was therefore a 
racial classification subject to strict scrutiny under 
the Equal Protection Clause and, because the state



3

did not advance a compelling governmental interest, 
was unconstitutional.

In the context of racial classifications, this Court 
has most often applied strict scrutiny when the 
government expressly classifies individuals by race 
and differentially allocates benefits and burdens 
based upon individual membership in a racial or 
ethnic group. See, e.g., Fisher v. Univ. of Tex., 133 S. 
Ct. 2411 (2013) (reviewing public university
admissions program); Parents Involved in Cmty. Sch. 
v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) 
(reviewing programs to assign individual students to 
particular K-12 public schools); Grutter, 539 U.S. 30G 
(2003) (reviewing public law school admissions 
program); Adarand Constructors, Inc. v. Pena, 515 
U.S. 200 (1995) (reviewing program to award 
government contracts).

But this Court also has identified a category of 
cases where strict scrutiny applies to governmental 
action that does not allocate benefits or burdens 
directly to individuals but rather controls how 
decisions related to that allocation occur. When race 
is “the predominant factor,” Bush v. Vera, 517 U.S. 
952, 959 (1996), motivating the manipulation of the 
political process, that change in the political process 
itself creates a racial classification that is subject to 
strict scrutiny. For example, this Court has held 
that redistricting decisions are subject to strict 
scrutiny when they disregard traditional race- 
neutral districting principles and otherwise are 
“unexplainable on grounds other than race,” even 
when there is no resulting substantive harm to any 
individual’s voting strength. Shaw v. Reno, 509 U.S. 
630, 641-43 (1993); see also Bush, 517 U.S. at 958.



4

Likewise, strict scrutiny applied in Hunter and 
Seattle, which this Court subsequently characterized 
as “precedents involving discriminatory 
restructuring of governmental decisionmaking,” 
Romer v. Evans, 517 U.S. 620, 625 (1996), because 
the challenged governmental action in those cases 
created uniquely onerous political processes for 
deciding whether to adopt constitutionally 
permissible race-conscious programs.

The narrow application of strict scrutiny beyond 
decisions that directly allocate governmental benefits 
and burdens reinforces the core rationale supporting 
this Court’s conclusion that all racial classifications 
must be subject to strict scrutiny: they “delay the
time when race will become a truly irrelevant, or at 
least insignificant, factor” in society. Adarand, 515 
U.S. at 229. It is, of course, the political process that 
determines the allocation of governmental benefits 
and burdens, so efforts like Proposal 2 to structure 
the political process along overtly racial lines 
unmistakably mandate that race be “outcome 
determinative,” Grutter, 539 U.S. at 389 (Kennedy, 
J., dissenting), in the way government operates and 
“threaten[j to carry us further from the goal of a 
political system in which race no longer matters—a 
goal that the Fourteenth and Fifteenth Amendments 
embody, and to which the Nation continues to 
aspire,” Shaw, 509 U.S. at 657. The suggestion that 
changing the political process along racial lines to 
prevent the state from taking constitutionally 
permissible race-conscious action is somehow 
justified because it may ultimately reduce the 
importance of race within society is irreconcilable 
with settled doctrine. See, e.g., Parents Involved, 551



5

U.S. at 782 (Kennedy, J., concurring) (“To make race 
matter now so that it might not matter later may 
entrench the very prejudices we seek to overcome.”).

Because the state plainly has a compelling 
interest in prohibiting race-conscious action that 
violates the Equal Protection Clause, the political 
restructuring doctrine is necessarily implicated only 
in the limited circumstances where race-conscious 
governmental action is constitutionally permissible. 
Under those circumstances, the state must make a 
choice whether to take race into account; there is 
consequently a need for public discourse regarding 
whether or not to adopt such measures. In this case, 
for example, Michigan was free to maintain the race­
conscious admissions program upheld in Grutter or 
to abandon it. See, e.g., Crawford v. Bd. of Educ., 
458 U.S. 527, 539 (1982). Proposal 2, however, 
effected far more than a mere repeal of race­
conscious legislation. While otherwise leaving intact 
the Boards of Regents’ plenary authority over 
university affairs, Proposal 2 stripped the Boards’ 
power only with respect to an inherently racial issue 
and entrenched that issue at a higher and more 
burdensome level of political decisionmaking. 
Although history instructs that the targeted 
restructuring of the political process has often been 
used, as here, to the disadvantage of racial 
minorities, this Court has cautioned that allowing 
either side of a debate to manipulate the political 
process for making such decisions introduces a racial 
divide into the political system. See Shaw, 509 U.S. 
at 650-51 (“[E]qual protection analysis is not 
dependent on the race of those burdened or 
benefited” (internal quotation marks omitted)).



6

Recent empirical analysis demonstrates that racial 
polarization was substantially greater in Michigan 
on the question of whether to amend the constitution 
to prohibit race-conscious admissions programs than 
on the more general question of whether affirmative 
action programs should be adopted. See generally 
Brief of Amici Curiae Political Scientists Donald 
Kinder et al. (hereinafter “Kinder Br.”).

The political restructuring doctrine is a 
necessary bulwark of equal protection jurisprudence: 
it ensures that the debate over whether to adopt 
constitutionally permissible race-conscious programs 
does not lead to racial balkanization if one side 
attempts to racially gerrymander the political 
process to rig the outcome in its favor. It also 
reflects a clear and narrow rule: when race is the
predominant factor explaining a state’s decision to 
establish a distinct political process, the 
governmental action creates a racial classification 
subject to strict scrutiny. Although courts may be 
called upon to determine whether race is the 
predominant factor behind the governmental action 
and whether the action creates a distinct political 
process, those determinations are guided by tests 
that are amenable to commonsensical and objective 
application.

Accordingly, the Court should affirm the Sixth 
Circuit’s conclusion that Proposal 2 was a distortion 
of the political process related to constitutionally 
permissible race-conscious policies and therefore a 
racial classification that is subject to, and fails, strict 
scrutiny, especially in light of Petitioner’s failure 
even to articulate a compelling state interest.



7

STATEMENT

A. Background

Under its state constitution, Michigan’s public 
universities are controlled by independent Boards of 
Regents, each of which has the power of “general 
supervision of its institution and the control and 
direction of all expenditures from the institution’s 
funds.” Mich. Const, art. VIII, § 5. Board members 
have always enjoyed autonomy over admissions 
policies, and they have delegated the responsibility 
to establish admissions standards, policies, and 
procedures to units within the institutions, including 
central admissions offices, schools, and colleges. Pet. 
App. 27a-29a; Supp. C.A. Br. of Universities 19-21. 
Students, faculty, and other individuals have always 
been free to lobby Michigan’s public universities for 
or against the adoption of particular admissions 
policies. They have histoi'ically done so on numerous 
occasions. By the 1990s, for example, in response to 
decades of robust, hard-fought political debate, 
admissions decisions in many of Michigan’s public 
universities’ graduate and undergraduate programs 
included consideration of race as one of a multitude 
of factors. Supp. Pet. App. 270a-71a.

In 2003, this Court in Grutter, 539 U.S. 306, 
upheld as constitutional the University of Michigan 
Law School’s holistic, race-conscious admissions 
policy. On the same day, the Court invalidated the 
admissions policy of the University of Michigan’s 
undergraduate college as not narrowly tailored to 
serve the State’s compelling interest in obtaining the 
educational benefits of student-body diversity. See 
Gratz v. Bollinger, 539 U.S. 244 (2003).



8

Following these decisions, Michigan’s public 
universities amended their admissions policies as 
needed to comply with Grutter. For instance, the 
University of Michigan’s undergraduate admissions 
officers crafted a policy that engaged in an 
“individualized inquiry into the possible diversity 
contributions of all applicants,” Grutter, 539 U.S. 
at 341, considering race along with another “50 to 80 
different categories,” such as personal interests and 
achievements, geographic location, alumni 
connections, athletic skills, socioeconomic status, 
family educational background, overcoming 
obstacles, work experience, and any extraordinary 
awards, both inside and outside the classroom, Supp. 
Pet. App. 283a-284a.

As Petitioner acknowledges, Pet. Br. 7, in direct 
response to this Court’s rulings in Gratz and Grutter, 
opponents of race-conscious admissions programs 
organized to place a proposal to amend the Michigan 
Constitution on the November 2006 statewide ballot. 
The initiative, Proposal 2, sought “to amend the 
State Constitution to ban affirmative action 
programs,” Pet. App. 8a, and its principal author 
stated that its purpose was “to prohibit programs 
that granted racial preferences, that is, affirmative 
action programs,” Supp. Pet. App. 327a. Once 
adopted by the voters, Proposal 2 amended the 
Michigan Constitution to include the following 
provisions, entitled “Affirmative Action,” in Article I:

(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



9

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 national origin in the 
operation of public employment, public 
education, or public contracting.

(3) For the purposes of this section “state” 
includes, but is not necessarily limited to, 
the state itself, any city, county, any public 
college, university, or community college, 
school district, or other political subdivision 
or governmental instrumentality of or 
within the State of Michigan not included in 
sub-section 1.

Pet. App. 8a-9a (citing Mich. Const, art. I, § 26). No 
prior constitutional amendment in Michigan had 
dealt with any matter relating to university 
admissions or, for that matter, with anything related 
to higher education governance or affairs.

In December 2006, Proposal 2 took effect and 
generated two major changes to the admissions 
policies at Michigan’s public universities. First, 
Proposal 2 mandated that Michigan’s public 
universities remove “race, sex, color, ethnicity, or 
national origin” as potential factors in the 
admissions process even though the Boards and their 
designated admissions committees could continue to



10

consider any and all other factors. Pet. App. 9a. 
Second, Proposal 2 “entrenched this prohibition at 
the state constitutional level, thus preventing public 
colleges and universities or their Boards from 
revisiting this issue—and only this issue—without 
repeal or modification of [Proposal 2].” Pet. App. 9a.

B. Proceedings Below

On November 8, 2006, the day after Proposal 2 
was approved, the Coalition to Defend Affirmative 
Action, Integration and Immigration Rights and 
Fight for Equality By Any Means Necessary 
(“Coalition Plaintiffs”) filed suit in the United States 
District Court for the Eastern District of Michigan. 
About a month later, the Michigan Attorney General 
filed a motion to intervene as a defendant, which the 
court granted. Pet. App. 9a-10a.

On December 19, 2006, the Cantrell Plaintiffs, a 
group of students, faculty, and prospective applicants 
to Michigan’s public universities, filed a separate 
suit in the United States District Court for the 
Eastern District of Michigan. Pet. App. 10a. The 
Cantrell Plaintiffs sought to prohibit Proposal 2's 
enforcement only as applied to university 
admissions, Pet. App. 10a, on the ground that 
Proposal 2 violates the Fourteenth Amendment by 
creating a separate and more burdensome 
governmental decisionmaking process for 
determining whether or not universities may adopt 
race-conscious admissions policies that satisfy the 
Fourteenth Amendment. The district court 
consolidated the two cases in January 2007. See Pet. 
App. 109a.



11

In reviewing Michigan law and the historical 
record, the district court found that “governance of a 
university, including the regulation of admissions 
criteria, is part of the political process” and that 
“race-conscious admissions programs developed” 
through this process “in the first place.” Supp. 
Pet. 327a. After discovery and consideration of 
expert testimony, the court further found that, in 
terms of enrollment numbers, “Proposal 2’s 
elimination of affirmative action programs will fall 
the heaviest on minorities,” Supp. Pet. App. 316a, a 
finding that was borne out after Proposal 2 went into 
effect. Brief for Respondents the Regents of the 
University of Michigan et al. 23-25.

The district court also found “no question” that 
“Proposal 2 makes it more difficult” for proponents of 
constitutionally permissible race-conscious programs 
to achieve their adoption. Supp. Pet. App. 328a. 
Expert testimony established that the process of 
amending Michigan’s Constitution is “lengthy, 
complex, difficult and expensive,” J.A. 40, and ballot 
initiatives in Michigan can cost as much as $15 
million, “with $5 million being a practical minimum,” 
J.A. 47. Because Michigan requires “signatures from 
10% of the total vote cast for all candidates” in the 
last gubernatorial election and has a relatively short 
window for gathering signatures, the cost of simply 
securing enough signatures to place an initiative on 
the ballot could approach $1 million. J.A. 44, 47-48.

Nonetheless, the district court denied the 
Plaintiffs’ motions for summary judgment and 
granted the Attorney General’s motion for summary 
judgment, stating that “the political restructuring 
effectuated by Proposal 2 does not offend the Equal



12

Protection Clause.” Supp. Pet. App. 330a; see Pet. 
App. lla-12a. The district court subsequently 
denied the Cantrell Plaintiffs’ motion for 
reconsideration, and both Plaintiff groups appealed. 
Pet. App. 12a.

On appeal, the Sixth Circuit, sitting en banc, 
invalidated Proposal 2. Relying on Seattle and 
Hunter, the Sixth Circuit held that a political 
enactment denies equal protection when it (1) has a 
“racial focus” and (2) “reallocates political power or 
reorders the decisionmaking process” in a way that 
“places special burdens on racial minorities.” Pet. 
App. 21a-22a.

As the Sixth Circuit recognized, it is undisputed 
that after Proposal 2, the only recourse available to a 
person seeking to restore the constitutionally 
permissible consideration of race as one factor in 
higher education admissions would be to mount a 
successful statewide electoral campaign to amend 
the Michigan Constitution, which, as the district 
court found, is “an extraordinarily expensive process 
and the most arduous of all the possible channels for 
change.” Pet. App. 36a. In contrast, a Michigan 
citizen lobbying for or against consideration of such 
non-racial factors as religious group membership, 
legacy status, geographic origin, athletic skill or 
virtually any other dimension of experience or 
background treated as an identifying characteristic 
may use any number of less burdensome avenues to 
change or maintain admissions policies. For 
example, such a citizen could directly engage in 
discourse with the Boards, the appropriate 
university committees, or other university officials. 
See Pet. App. 35a. The Sixth Circuit also affirmed



13

the district court’s finding that “the admissions 
policies affected by Proposal 2 are part of a political 
process,” canvassing in detail Michigan law and 
relying also on briefing by University defendants 
“clarifying] their admissions practices.” Pet.
App. 27a-33a (internal quotation marks omitted).

As the Sixth Circuit explained, “[b]ecause less 
onerous avenues to effect political change remain 
open to those advocating consideration of nonracial 
factors in admissions decisions, Michigan cannot 
force those advocating for consideration of racial 
factors to traverse a more arduous road without 
violating the Fourteenth Amendment.” Pet.
App. 37a-38a. The Sixth Circuit recognized that the 
State of Michigan had made no attempt to justify 
Proposal 2 by advancing a putative compelling 
interest. Pet. App. 45a (“Likewise, because the 
Attorney General does not assert that Proposal 2 
satisfies a compelling state interest, we need not 
consider this argument.”).

SUMMARY OF ARGUMENT

This Court has held that all racial classifications 
are subject to strict scrutiny. See Fisher, 133 S. Ct. 
at 2421. Thus, strict scrutiny applies when the 
government classifies “individuals by race” and 
differentially “allocate[s] benefits and burdens on 
that basis,” Parents Involved, 551 U.S. at 783, 789 
(Kennedy, J., concurring). Strict scrutiny also 
applies when race is “the predominant factor,” Bush, 
517 U.S. at 959, in determining how the political 
process is structured because this Court has 
recognized that the allocation of government benefits 
and burdens cannot be separated from the process by



14

which those political decisions are made. See Bush, 
517 U.S. 952; Shaw, 509 U.S. 630; Seattle, 458 
U.S. 457; Hunter, 393 U.S. 385. Proposal 2 falls into 
this second, narrower category of racial 
classifications because it requires a distinct and, as 
the district court explicitly found and the Sixth 
Circuit affirmed, more onerous process for deciding 
whether to adopt constitutionally permissible race­
conscious admissions programs than the process that 
applies to other decisions related to admissions 
criteria.

This Court should affirm the Sixth Circuit’s 
decision and decline the invitation by Petitioner and 
Russell to overrule the political restructuring 
doctrine embodied in Hunter and Seattle, for three 
principal reasons:

1. The political restructuring doctrine is
consistent with, and a necessary component of, this 
Court’s equal protection jurisprudence.

This Court has long recognized that the 
“peculiar and disadvantageous” treatment of racial 
matters in the political process is a racial 
classification subject to strict scrutiny. See Seattle, 
458 U.S. at 485. Like decisions impacting voting 
rights and the redistricting of legislative boundaries, 
decisions to modify other facets of the political 
process directly impact the allocation of 
governmental benefits and burdens to individuals. 
Applying strict scrutiny to decisions that create 
“distinctions based on race,” id.., within our political 
system is thus consistent with longstanding doctrine.



15

This Court has also repeatedly explained that 
all racial classifications must be subjected to strict 
scrutiny because treating race differently may 
increase the salience of race in our constitutional 
democracy and sanction the view that race remains 
outcome determinative in our political processes. See 
Shaw, 509 U.S. at 657. These risks are particularly 
likely when the classification directly affects the 
individual allocation of governmental benefits and 
burdens on the basis of race. But they are equally 
likely when the political process itself contains a 
distinct decisionmaking process for racial issues.

States will always have a compelling interest in 
prohibiting race-conscious conduct that violates the 
Equal Protection Clause. Changes to the political 
process can therefore violate the Fourteenth 
Amendment under the political restructuring 
doctrine only in the narrow circumstances in which a 
state has the choice whether or not to adopt a 
constitutionally permissible race-conscious program. 
In this context, the political restructuring doctrine 
plays an indispensable role by assuring that the 
process through which the state resolves that 
question does not needlessly heighten the focus on 
race as an overly salient or outcome-determinative 
feature of our political system.

In Hunter and Seattle, the political process was 
manipulated to prohibit constitutionally permissible 
race-conscious programs or policies. In decisions 
that post-date Hunter and Seattle, this Court has 
held that all racial classifications, including those 
intended to benefit minorities, are subject to strict 
scrutiny. See, e.g., Adarand, 515 U.S. 200. 
Application of the political restructuring doctrine



16

does not, therefore, turn on whether the state has 
mandated or prohibited constitutionally permissible 
race-conscious policies. Rather, this Court’s current 
understanding of the Equal Protection Clause 
requires strict scrutiny whenever racial issues are 
subject to a distinct and more burdensome 
decisionmaking process, regardless of outcome.

The political restructuring doctrine thus applies 
in narrow circumstances delineated by a clear rule 
that enforces this Court’s core equal protection 
principles. In the limited context of constitutionally 
permissible race-conscious action, when race is the 
predominant factor explaining a state’s decision to 
establish a distinct political process, the 
governmental action creates a racial classification 
subject to strict scrutiny. Race is the predominant 
factor behind the creation of a distinct
decisionmaking process when, as here, the creation 
of the separate decisionmaking process is
“unexplainable on grounds other than race,” see 
Shaw, 509 U.S. at 643-44 (quoting Village of 
Arlington Heights v. Metro. Hons. Dev. Corp., 429 
U.S. 252, 266 (1977), due to the racial character of 
the issue subject to the distinct process. When, as 
also occurred here, “race” expressly appears on the 
face of the political restructuring measure to define 
how (or to which types of action) a distinct 
decisionmaking process applies and nothing in the 
record otherwise dispels the conclusion that its 
application to “race” was the predominant factor 
behind the measure, the racial character of the issue 
is clear. See Hunter, 393 U.S. at 390-91. And a 
distinct political process exists when plenary 
decisionmaking authority resides at one



17

governmental level, e.g., the Board of Regents, but 
the decision whether to take constitutionally 
permissible action with respect to race is situated at 
a different governmental level, e.g., the state 
constitution, in which advocacy is necessarily 
substantially more burdensome. By contrast, 
decisions to enact (or not enact) or to repeal (or leave 
in place) constitutionally permissible race-conscious 
legislation or policies are not subject to strict 
scrutiny under the political restructuring doctrine 
because they do not create a distinct decisionmaking 
process.

2. The Sixth Circuit correctly concluded
that Proposal 2 created a racial classification subject 
to strict scrutiny. Proposal 2 explicitly established a 
distinct political process for race-conscious 
admissions programs. Under Proposal 2, the Boards 
of Regents retain plenary authority over all other 
university matters, including general authority to set 
admissions criteria. But the specific decision 
whether to adopt constitutionally permissible race- 
conscious admissions programs was uprooted from 
that locus of political decisionmaking and entrenched 
at the state constitutional level. As a direct response 
to Grutter and framed by its principal author as 
prohibiting consideration of race in college 
admissions, Proposal 2 cannot be rationally 
explained or understood on grounds other than race.

Both Petitioner and Russell argue that 
Proposal 2 should not be subject to strict scrutiny 
because many considerations other than intent to 
harm minorities might lead a state to prohibit race­
conscious college admission programs. But requiring 
plaintiffs to prove animus toward a particular racial



18

group as part of an equal protection claim would be 
incompatible with decades of this Court’s precedents, 
including Shaw, Bush, Adarand, Parents Involved, 
and Fisher. The district court and the Sixth Circuit 
both found that, in addition to targeting race 
explicitly for different treatment, the fundamental 
aims of Proposal 2 were to prohibit race-conscious 
admissions programs and to create a different and 
more burdensome decisionmaking process to block 
any future effort to alter that outcome. The 
underlying attitudes of voters toward particular 
racial groups are irrelevant.

Because the state chose not even to venture to 
identify a compelling interest for the racial 
classification embodied in Proposal 2, and because 
Proposal 2 is not narrowly tailored even if such an 
interest were deemed to exist, Proposal 2 is 
unconstitutional. Petitioner’s argument that strict 
scrutiny should not apply to Proposal 2 because it 
seeks ultimately to minimize the salience of race by 
prohibiting race-conscious admission programs 
cannot be squared with settled Fourteenth 
Amendment doctrine. All racial classifications are 
subject to strict scrutiny, however laudable a goal 
they purport to advance and even if their supporters 
believe the racial classification will ultimately reduce 
the prominence of race in society.

3. Stare decisis counsels against taking
the dramatic step to overrule or substantially limit 
such longstanding precedent as Hunter and Seattle. 
The attacks by Petitioner and Russell on the wisdom 
of race-conscious admissions programs, which serve 
only to catalogue their continuing disagreement with



19

this Court’s holdings in Grutter and Fisher, are 
irrelevant to the question presented in this case.

ARGUMENT

I. THE POLITICAL RESTRUCTURING
DOCTRINE IS CONSISTENT WITH, AND A 
NECESSARY COMPONENT OF, THIS 
COURT’S EQUAL PROTECTION 
JURISPRUDENCE.

A. This Court Has Long Recognized That 
the “Peculiar and Disadvantageous” 
Treatment of Racial Matters in the 
Political Process Is a Racial 
Classification Subject to Strict 
Scrutiny.

More than a quarter century ago, this Court 
held that the ordinary political processes of 
government decisionmaking may not be intentionally 
skewed against particular policies because their 
subject matter is racial in nature. Seattle, 458 U.S. 
at 470 (holding that strict scrutiny is triggered 
whenever “the State allocates governmental power 
nonneutrally, by explicitly using the racial nature of 
a decision to determine the decisionmaking process”). 
In Seattle, blacks and other citizens had achieved 
school board approval of a busing plan to lessen the 
de facto segregation in Seattle’s schools.1 Opponents

1 The constitutionality of Seattle’s “race-conscious student 
assignments for the purpose of achieving integration, even 
absent a finding of prior de jure segregation” was not 
challenged, so the constitutionality of the plan was assumed.



20

then mounted a successful campaign to pass a 
statewide initiative, Initiative 350, prohibiting school 
boards from using busing to accomplish racial 
integration, while permitting the continued use of 
busing for all other purposes of school transportation 
and otherwise leaving school governance processes 
intact. Initiative 350 “nowhere mention[ed] ‘race’ or 
‘integration,’” but it “in fact allow[ed] school districts 
to bus their students ‘for most, if not all,’ of the 
nonintegrative purposes required by [the state’s] 
educational policies.” Id. at 471.

This Court held that Initiative 350 created a 
racial classification subject to strict scrutiny: 
“ [W]hen the political process or the decisionmaking 
mechanism used to address racially conscious 
legislation—and only such legislation—is singled out 
for peculiar and disadvantageous treatment, the 
governmental action plainly rests on distinctions 
based on race.” Id. at 485 (internal quotation marks 
omitted); see also 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.’” 
(quoting Lee v. Nyquist, 318 F. Supp. 710, 718

Seattle, 458 U.S. at 472 n.15. Unsurprisingly, Petitioner cites 
no authority supporting his contention that this Court’s 
decision not to resolve a question that the parties did not raise 
undermines the precedent on the issue the Court did resolve. 
Cf. Fisher, 133 S. Ct. at 2421 (assuming, for purposes of 
decision, that Grutter is good law); id. at 2422 (Scalia, J., 
concurring) (concurring because petitioner did not ask Court to 
overturn Grutter).



21

(W.D.N.Y. 1970), aff’d, 403 U.S. 935 (1971))). This 
Court thus affirmed that a state could not selectively 
gerrymander the political process to impose more 
rigorous political burdens on those citizens seeking 
to promote constitutionally permissible race­
conscious approaches than it imposed on those 
pursuing other policy agendas involving public 
education. See Seattle, 458 U.S. at 474-75; see also 
id. at 474 n.17 (noting that the constitutional evil 
was the creation of a “comparative structural 
burden” for advocating otherwise constitutionally 
permissible race-conscious policies within the 
political process).

This Court in Seattle relied on Hunter, 393 
U.S. 385, which had articulated the same rule more 
than a decade earlier. In Hunter, the Court struck 
down an amendment to the City of Akron’s charter 
because it explicitly established a process for 
deciding racial housing matters that was distinct 
from the process for all other housing matters. See 
id. at 389. The charter amendment provided that 
“(a]ny ordinance enacted by the Council of Akron 
which regulates the use, sale, advertising, transfer, 
listing assignment, lease, sublease or financing of 
real property of any kind or of any interest therein 
on the basis of race, color, religion, national origin or 
ancestry must first be approved by a majority of the 
electors . . . before said ordinance shall be effective.” 
Id. at 387 (emphasis added). The requirement of 
voter approval for certain ordinances duly enacted by 
the city council was unique within the city charter, 
applying only to “laws to end housing 
discrimination.” Id. at 390; see also id. at 391 (noting 
that “[t]he automatic referendum system” did not, for



2 2

example, “affect tenants seeking more heat or better 
maintenance from landlords, nor those seeking rent 
control, urban renewal, public housing, or new 
building codes”). The charter amendment thus 
forced those who sought protection from private 
racial or religious discrimination to run a “gauntlet” 
that those who sought to prevent other abuses in real 
estate did not have to run. Id. at 390.

As such, the amendment “was an explicitly 
racial classification treating racial housing matters 
differently from other . . . housing matters.” Id. at 
389; see also id. at 395 (Harlan, J., concurring) 
(observing that the amendment was a racial 
classification because it was not “grounded in neutral 
principle”); Gordon v. Lance, 403 U.S. 1, 5 (1971) 
(distinguishing facts of case from Hunter “in which 
fair housing legislation alone was subject to an 
automatic referendum requirement”). “Because the 
core of the Fourteenth Amendment is the prevention 
of meaningful and unjustified official distinctions 
based on race,” the “racial classification” embodied in 
the charter amendment was subject to strict scrutiny 
under the Equal Protection Clause. Hunter, 393 U.S. 
at 391-93.

This Court thereafter relied on similar 
considerations in a series of cases alleging racial 
gerrymandering when states created majority- 
minority electoral districts in the wake of the 1990 
Census. See Bush, 517 U.S. at 958-1002; Shaw, 509 
U.S. at 642-58; Easley v. Cromartie, 532 U.S. 234, 
241-58 (2001); Miller v. Johnson, 515 U.S. 900, 904- 
28 (1995). In those cases, the Court held that using 
race as the predominant factor in structuring the 
political process through electoral district boundaries



23

creates a racial classification subject to strict 
scrutiny under the Equal Protection Clause. The 
holdings in Shaw and Bush did not rest on the direct 
allocation of particular governmental benefits and 
burdens based on the race of the individuals seeking 
those benefits.2 Rather, the rationale supporting 
application of strict scrutiny was the state’s reliance 
on race as the predominant factor in drawing 
electoral district boundaries and thus in ultimately 
structuring the legislative process that is responsible 
for allocating governmental benefits and burdens to 
individuals.

For example, the plaintiffs in Shaw did not 
claim that the challenged reapportionment plan 
unconstitutionally diluted white voting strength, or 
even that they themselves were white. See 509 U.S. 
at 641. Instead, their claim focused on the 
application of race as the essential mechanism by 
which electoral lines were determined and 
government decisionmaking organized: “Racial
gerrymandering, even for remedial purposes, may 
balkanize us into competing factions; it threatens to 
carry us further from the goal of a political system in 
which race no longer matters—a goal that the 
Fourteenth and Fifteenth Amendments embody, and 
to which the nation continues to aspire.” Id. at 657.

2 As Justice Souter observed in Bush, rather than 
“addressing any injury to members of a class subjected to 
differential treatment, the standard presupposition of an equal 
protection violation, Shaw I addressed a putative harm subject 
to complaint by any voter objecting to an untoward 
consideration of race in the political process.” Bush, 517 U.S. 
at 1045 (Souter, J., dissenting).



24

Although the Court reiterated that it “never has held 
that race-conscious state decisionmaking is 
impermissible in all circumstances,” id. at 642, the 
Court concluded in Shaw that the State of North 
Carolina’s decision to enact redistricting legislation 
that “is so bizarre on its face that it is ‘unexplainable 
on grounds other than race’” was subject to strict 
scrutiny as a racial classification, id. at 644 (quoting 
Arlington Heights, 429 U.S. at 266).

Likewise, in Bush, the Court relied on Shaw to 
apply strict scrutiny to, and ultimately void, a plan 
to redraw Texas electoral district lines because the 
plaintiffs established that race was “the predominant 
factor motivating the legislature’s redistricting 
decision.” 517 U.S. at 959, 970-72 (internal
quotation marks and alterations omitted); accord id. 
at 996 (Kennedy, J., concurring); id. at 1001 
(Thomas, J., concurring). The constitutional vice was 
not any resulting substantive harm to any 
individual’s voting strength, but rather “the 
legislature’s reliance on racial criteria” as the 
predominant factor in their redistricting efforts. Id. 
at 958. In other words, the Texas redistricting failed 
under the Equal Protection Clause because the 
“contours” of the lines drawn were “unexplainable in 
terms other than race,” id. at 972, and not narrowly 
tailored to serve a compelling state interest, see id. 
at 976-83. Cf. League of United, Latin Am. Citizens v. 
Perry, 548 U.S. 399, 475 & n.12 (2006) (Stevens, J., 
concurring in part and dissenting in part) 
(recognizing on behalf of himself and one other 
Justice that compliance with the Voting Rights Act 
can be a compelling interest in legislative 
redistricting); id. at 485 n.2 (Souter, J., concurring in



25

part and dissenting in part) (same, on behalf of 
himself and one other Justice); id. at 518-19 (Scalia, 
J., concurring in the judgment in part and dissenting 
in part) (same, on behalf of himself and three other 
Justices).

Notably, the Court in Shaw drew from the same 
body of case law addressing attempts to restrict the 
political power of minority groups through 
manipulations of the machinery of governmental 
power upon which the Court relied in Hunter and 
Seattle. Compare Shaw, 509 U.S. at 639-41, 644-46 
(discussing Guinn v. United States, 238 U.S. 347 
(1915), Gomillion v. Lightfoot, 364 U.S. 339 (1960), 
Wright v. Rockefeller, 376 U.S. 52 (1964), Reynolds u. 
Sims, 377 U.S. 533 (1964), and Allen u. State Bd. of 
Elections, 393 U.S. 544 (1969)) with Hunter, 393 U.S. 
at 391, 393 (citing Gomillion, 364 U.S. 339, Reynolds, 
377 U.S. 533, and Avery v. Midland Cnty., 390 
U.S. 474 (1968)), and Seattle, 458 U.S. at 485-86 
(discussing Hunter’s reliance on voting rights cases).

These cases recognized that, although 
government can discriminate directly in the 
allocation of benefits and burdens based on the race 
of individuals, subtle changes in the political process 
can accomplish essentially the same ends because 
decisions about the allocation of governmental 
benefits and burdens ultimately flow from the 
political process. See generally Brief for Amici 
Curiae Constitutional and Local Government 
Scholars Michelle Wilde Anderson et al. in Support of 
the Cantrell Respondents. Gomillion dramatically 
illustrates this functional equivalence: the City of
Tuskegee had been “square in shape,” but the law 
challenged in that case “transformed it into a



26

strangely irregular twenty-eight-sided figure” that 
“deprived the petitioners of the municipal franchise 
and consequent rights.” 364 U.S. at 341, 347. 
Likewise, in Reynolds, the Court anchored the “one 
person, one vote” principle on the importance of 
“equal representation” within our country’s 
“representative government,” thereby recognizing 
that election results dictate governmental decisions. 
377 U.S. at 560-61.

In Shaw, the Court relied on the ugly history of 
efforts by state and local governments to limit 
minority access to the franchise to demonstrate that 
the machinery of political power can be corrupted 
“through the use of both subtle and blunt 
instruments” to limit, along racial lines, the ability of 
citizens to influence governmental decisions. 509 
U.S. at 639-41 (internal quotation marks omitted). 
And in Hunter and Seattle, these historical examples 
illustrated an analogous means through which the 
political system could be manipulated along racial 
lines to affect the allocation of governmental benefits 
and burdens to individuals. See Hunter, 393 U.S. at 
391 (holding that restructuring the political process 
to disadvantage advocates of programs that benefit 
minorities “is no more permissible than denying 
them the vote, on an equal basis with others”); id. at 
392-93 (comparing political restructuring to efforts to 
“dilute any person’s vote or give any group a smaller 
representation than another of comparable size”); 
accord, Seattle, 458 U.S. at 486-87.

The shared reliance on this case law underscores 
that Hunter and Seattle, like Shaw and Bush, rest on 
the recognition that, because governmental decisions 
regarding the allocation of benefits and burdens



27

among individuals flow directly from the political 
process, using race as the predominant factor in 
restructuring that process is no less suspect than 
using race to decide directly which individuals will 
receive which benefits or be subject to which burdens 
and can be sustained only if narrowly tailored in 
support of a compelling state interest. That 
conclusion is fully consistent with this Court’s 
longstanding principle that “legislation which 
restricts those political processes which can 
ordinarily be expected to bring about repeal of 
undesirable legislation” should “be subjected to more 
exacting judicial scrutiny.” United States v. Carotene 
Prods. Co., 304 U.S. 144, 152 n.4 (1938) (cited in 
Seattle, 458 U.S. at 486). Hunter and Seattle thus fit 
within the framework of cases that pay close 
attention to devices that preordain the distribution of 
benefits and burdens as a function of race. 
Unsettling those precedents would erode the 
foundations of the entire theory of strictly 
scrutinizing racial classifications.

B. Structuring the Political Process 
Based on Racial Considerations Is 
Particularly Likely To Underscore 
That Race Is a Significant and 
Outcome-Determinative Factor Within 
Our Political System.

The political restructuring doctrine plays an 
indispensible role in the limited context where states 
must decide whether or not to adopt constitutionally 
permissible race-conscious programs by ensuring 
that the processes through which states and their 
political subdivisions resolve that debate do not 
entrench race as a central, outcome-determinative



28

feature of our political system. Failing to apply strict 
scrutiny where the political process governing that 
debate is transparently restructured around race 
would strip equal protection doctrine of any 
principled coherence.

This Court has held that all racial classifications 
are subject to strict scrutiny because they pose the 
risk of lasting harm to our society. See Fisher, 133 
S. Ct. at 2421 (holding that “all racial classifications 
imposed by government must be analyzed by a 
reviewing court under strict scrutiny” (internal 
quotation marks omitted)); City of Richmond v. J.A. 
Croson Co., 488 U.S. 469, 493-94 (1989) (“ [Ajbsent 
searching judicial inquiry . . . , there is simply no 
way of determining what classifications are ‘benign’ 
or Temedial’ and what classifications are in fact 
motivated by illegitimate notions of racial inferiority 
or simple racial politics.”).

This is true even when the classifications do not 
differentially allocate governmental benefits and 
burdens among individuals. See Shaw, 509 U.S. at 
651 (“[Rjacial classifications receive close scrutiny 
even when they may be said to burden or benefit the 
races equally.”). And even purportedly benign racial 
classifications receive strict scrutiny because they 
may “lead to a politics of racial hostility” and 
“endorse race-based reasoning,” which contribute to 
“an escalation of racial hostility and conflict.” 
Parents Involved, 551 U.S. at 746 (plurality opinion) 
(internal quotation marks and citations omitted). 
The most sincere belief that a racial classification 
will reduce racial differences in the long run is 
insufficient to avoid the application of strict scrutiny. 
Id. at 782 (Kennedy, J., concurring) (“To make race



29

matter now so that it might not matter later may 
entrench the very prejudices we seek to overcome.”).3

Of course, strict scrutiny is not triggered merely 
because governmental action is taken “with 
consciousness of race.” Bush, 517 U.S. at 958; see 
also Shaw, 509 U.S. at 642 (“This Court never has 
held that race-conscious state decisionmaking is 
impermissible in all circumstances.”). Race­
conscious action that does “not lead to different 
treatment based on a classification that tells each 
[person] he or she is to be defined by race” ordinarily 
need not satisfy “strict scrutiny to be found 
permissible.” Parents Involved, 551 U.S. at 789 
(Kennedy, J., concurring).4 Accordingly, the state 
may pursue any number of legitimate ends with race 
in mind without risking this harm. For example, the 
inclusion of race and ethnicity in the federal census, 
collection of such data by law enforcement or other 
governmental agencies, or the enactment of

3 Applying strict scrutiny, the question is whether the risk 
of societal harm from the racial classification is outweighed by 
the compelling governmental interest advanced by the narrowly 
tailored program. As Grutter demonstrates and Fisher 
confirms, the answer to that question may be yes in some 
circumstances.

4 For this reason, efforts to promote diversity in K-12 
public schools through “strategic site selection of new schools; 
drawing attendance zones with general recognition of the 
demographics of neighborhoods; allocating resources for special 
programs; recruiting students and faculty in a targeted fashion; 
and tracking enrollments, performance, and other statistics by 
race” do not require strict scrutiny, even though they involve 
consciousness of race. Parents Involved, 551 U.S. at 789 
(Kennedy, J., concurring).



30

antidiscrimination laws designed to promote equal 
treatment by eradicating racial discrimination do not 
trigger strict scrutiny because they do not involve the 
differential distribution of finite governmental 
resources to individuals based on their race or the 
redesign along racial lines of the decisionmaking 
processes that generate such differential 
distribution. See Miller v. Johnson, 515 U.S. at 916 
(“Redistricting legislatures will, for example, almost 
always be aware of racial demographics; but it does 
not follow that race predominates in the redistricting 
process.”). This Court has never suggested that the 
mere consideration of racial demographics, much less 
the mere utterance of the word “race,” by 
governmental actors risks lasting (or indeed any) 
harm to society so as to trigger strict scrutiny.

In contrast, the manipulation of the political 
process along racial lines, like the use of race at issue 
in Shaw and Bush, does trigger strict scrutiny. This 
Court has described the ultimate goal of the 
Fourteenth Amendment as advancing our society to 
a point where race structures neither individual 
opportunity nor the governmental decisions that 
ordain how such opportunity is allocated, and 
premised its decisions on precisely these grounds. 
See, e.g., Adarand, 515 U.S. at 229 (“ [I]t will delay 
the time when race will become a truly irrelevant, or 
at least insignificant, factor.”); Shaw, 509 U.S. at 657 
(identifying ultimate goal of Reconstruction 
amendments as creating “a political system in which 
race no longer matters”). Hunter itself rested on an 
understanding that “the core of the Fourteenth 
Amendment is the prevention of meaningful and



31

unjustified official distinctions based on race,” 393 
U.S. at 391.

The political restructuring doctrine vindicates 
that core equal protection principle in the limited 
contexts where race-conscious action is 
constitutionally permissible by ensuring that the 
political process for making that decision is not itself 
skewed on the basis of race.5 In such circumstances, 
the state has a choice whether or not to take race­
conscious action, so there will always be a need for 
public discourse regarding the enactment of such 
measures. Because ours is a democratic system, this 
Court’s recognition that race-conscious action can be 
constitutionally permissible necessitates that the 
decision whether to take such action must be made 
through the political process. Allowing one side of 
the debate to selectively change the rules of the 
political process along racial lines to make it 
substantially more likely that its preferred outcome 
will prevail in perpetuity would demonstrate with 
inescapable clarity that race remains a uniquely 
central feature of our “political system.” Shaw, 509 
U.S. 657.

5 Russell observes that the Equal Protection Clause 
protects individuals, not groups. Russell Br. at 15-17. Exactly 
so. A distinct decisionmaking process makes it more difficult 
for one side of the debate over whether to adopt a 
constitutionally permissible race-conscious program to advocate 
successfully for its position, so a racialized restructuring injures 
either the proponents or opponents of the program. As Shaw 
recognized, the race of those impacted by conduct that 
underscores the importance of race in our political process is 
not relevant. See 509 U.S. at 641 (emphasizing plaintiffs did 
not “even claim to be white”).



32

On the other hand, states plainly have a 
compelling interest in prohibiting racial 
classifications that violate equal protection. Any 
change to the political process to prohibit 
unconstitutional conduct is therefore justified and 
cannot cause any societal harm because any 
distinction based on race that it would reinforce 
merely repeats the Fourteenth Amendment. 
Petitioner makes a superficially plausible 
observation that it is “curious to say that a law that 
bars a state from discriminating on the basis of race 
or sex violates the Equal Protection Clause by 
discriminating on the basis of race and sex.” Pet 
Br. 4. But that completely misses the point. State 
actions that discriminate on the basis of race or sex 
are substantively unconstitutional absent adequate 
justification without regard to the political 
restructuring doctrine. Petitioner glaringly leaves 
out the language of Proposal 2 that the Cantrell 
Respondents challenge: its prohibition on racial
“preferences.” The political restructuring doctrine is 
implicated in this case only because Proposal 2 also 
prohibits state universities in Michigan from 
adopting precisely the kinds of race-conscious 
admissions programs that this Court upheld in 
Grutter. Indeed, that was its explicit purpose.

Contrary to Petitioner’s assertion, therefore, 
Proposal 2 is not a race-neutral enactment designed 
to further the goals of the Equal Protection Clause. 
Just the opposite. By creating a two-tier system of 
political decisionmaking, Proposal 2 needlessly 
heightens the salience of race in the political process 
and, by so doing, “contributes] to an escalation of 
racial hostility and conflict.” Parents Involved, 551



33

U.S. at 746 (plurality opinion) (internal quotation 
marks omitted). This concern is far from theoretical. 
Empirical analysis of public polling and voting 
polarization data demonstrates that Proposal 2 
engendered racial polarization that was 
unprecedented in Michigan. See generally Kinder 
Br. (finding, to a high degree of statistical certainty, 
that Proposal 2 caused racial polarization to an 
unprecedented degree, whether compared to the 
most racially contentious issues of the past several 
decades or to the division over the underlying 
question of whether affirmative action is desirable 
policy).

C. The Political Restructuring Doctrine 
Applies to A ll Manipulations of the 
Political Process That Cannot Be 
Explained on Grounds Other Than 
Race.

Because all racial classifications are 
constitutionally suspect, see, e.g., Adarand, 515 U.S. 
at 227, the political restructuring doctrine focuses on 
the manner in which racial issues are resolved 
rather than the outcome of that political debate. 
Accordingly, had Proposal 2 been written to mandate 
permanent race-conscious admissions policies and 
embed that admission criterion in the state’s 
constitution while otherwise leaving the Boards of 
Regents’ plenary authority intact, the measure would 
also be subject to strict scrutiny as a suspect 
restructuring of the political process along racial 
lines. That the group with the deck stacked against 
it would have been the one that opposes race­
conscious admissions programs would not affect the 
application of strict scrutiny (although a different set



34

of interests might lead to a different result in 
applying strict scrutiny).

The Court’s observations in Hunter and Seattle 
that the programs affected by the restructuring of 
the political process “inure[d] primarily to the benefit 
of the minority,” Seattle, 458 U.S. at 472, and that 
the restructuring thus “place [d] special burden on 
racial minorities,” Hunter, 393 U.S. at 391, were 
empirically accurate based on the record in each case 
and do not limit the political restructuring doctrine’s 
application, in light of Croson and Adarand.G

The Akron city council passed a fair housing 
ordinance because African-American citizens were 
experiencing overt racial discrimination, see Hunter, 
393 U.S. at 386, and the Seattle schools experiencing 
the most dire crowding and racial isolation were 
predominantly located in minority neighborhoods, 
see Seattle, 458 U.S. at 464. The Court recognized 
the broader benefits of the race-conscious legislation 
in these contexts, see id. at 472 (“And it should be 
equally clear that white as well as Negro children 
benefit from exposure to ethnic and racial diversity 
in the classroom.” (internal quotation marks 
omitted)), but the record in each case also 
demonstrated that members of the racial minority 6

6 Russell makes much of the Court’s observation that 
“[t]he majority needs no protection against discrimination,” 
Hunter, 393 U.S. at 391 (quoted in Seattle, 458 U.S. at 468). 
Russell Br. 19-20. The political restructuring doctrine, 
however, does not depend on this observation and applies to all 
racial classifications in a straightforward manner.



35

had a distinct interest in whether the race-conscious 
legislation was enacted.7

As such, it was unsurprising that the record in 
each case reflected the reality that members of 
minority groups generally supported and had been 
integral to securing the enactment of the policies 
affected by the political restructuring. Cf. Carolene 
Prods., 304 U.S. at 152 n.4 (holding that changes to 
the political process that harm “discrete and insular 
minorities” should be of particular concern under the 
Equal Protection Clause) (cited in Seattle, 458 U.S. 
at 486). The Court nonetheless made clear that 
these findings did not rest on an assumption that 
racial identity dictates individual beliefs or that the 
views held by members of a racial group are 
monolithic. See Seattle, 458 U.S. at 472 (stating that 
“the proponents of mandatory integration cannot be 
classified by race” and “Negroes and whites may be 
counted among both the supporters and the 
opponents of Initiative 350”); id. (“ [W]e may fairly 
assume that members of the racial majority both 
favored and benefited from Akron’s fair housing 
ordinance [at issue in Hunter].”).

7 Petitioner’s argument that “a Grutter policy” cannot 
benefit “all students” while also benefiting “primarily a 
minority group,” Pet. Br. 22, is simply wrong, as he plainly 
admits by conceding that representation of certain minority 
groups increased after universities changed their policies to 
comply with Grutter, Pet. Br. 7. In any event, this argument is 
beside the point because the political restructuring doctrine 
applies to all racial classifications.



36

The Court’s focus in Hunter and Seattle on the 
distinct harm to minorities of government action 
that, in fact, distinctly affected those minorities does 
not vitiate the doctrine articulated in those cases, 
just as the recognition in early voting rights cases 
that the challenged actions were motivated by the 
desire to prevent racial minorities from participating 
equally in our political system did not prompt the 
Court to revisit or revise these decisions in Shaw and 
its progeny. See Shaw, 509 U.S. at 639-41, 644-46 
(relying on cases that emerged from our Nation’s 
history of pervasive discrimination that uniquely 
harmed African-Americans to conclude that the 
majority-minority districts at issue were 
unconstitutional).

D. The Political Restructuring Doctrine 
Entails Straightforward Factual 
Inquiries and Is Integral to a Coherent 
Equal Protection Doctrine.

The political restructuring doctrine provides a 
clear test for determining whether strict scrutiny 
applies. When race is the predominant factor 
explaining a decision by the state or its political 
subdivision to establish a distinct political process, 
the governmental action creates a racial 
classification subject to strict scrutiny. See, e.g., 
Seattle, 458 U.S. at 485 (“ [W]hen the political process 
or the decisionmaking mechanism used to address 
racially conscious legislation—and only such
legislation—is singled out for peculiar and
disadvantageous treatment, the governmental action 
plainly rests on distinctions based on race.” (internal 
quotation marks omitted)). Each aspect of this test, 
in turn, involves a straightforward factual inquiry.



37

1. Race as Predominant Factor. Race is
the predominant factor behind the creation of a 
distinct decisionmaking process when, as here, the 
creation of the separate decisionmaking process 
is “unexplainable on grounds other than race,” see 
Shaw, 509 U.S. at 644, 647 (internal quotation 
marks omitted), due to the racial character of the 
issue subject to the distinct process. This inquiry is 
guided by Arlington Heights, 429 U.S. 252, Personnel 
Administrator of Massachusetts v. Feeney, 442 
U.S. 256 (1979), and Washington v. Davis, 426 
U.S. 229 (1976). The Court in Seattle observed that, 
although Initiative 350 nowhere mentioned “‘race’ or 
‘integration,’” the various exceptions built into the 
statute reflected that it had been “carefully tailored 
to interfere only with desegregative busing.” 458 
U.S. at 471. The Court concluded that it was 
“beyond reasonable dispute” that “the initiative was 
enacted ‘because of, not merely in spite of, its 
adverse effects upon’ busing for [racial] integration.” 
Id. (quoting Feeney, 442 U.S. at 279) (internal 
quotation marks omitted).

When, as also occurred here, “race” expressly 
appears on the face of the political restructuring 
measure to define how (or to which types of action) a 
distinct decisionmaking process applies and nothing 
in the record otherwise dispels the conclusion that its 
application to “race” was the predominant factor 
behind the measure, the racial character of the issue 
is clear. See Hunter, 393 U.S. at 390. In Hunter, 
there was “an explicitly racial classification treating 
racial housing matters differently” from other 
matters, id. at 389, because the charter amendment, 
by its terms, applied to housing laws that prohibit



38

discrimination based on race, see id. at 390. The 
record confirmed that this explicit reference to “race” 
to identify which antidiscrimination measures were 
subject to the distinct decisionmaking process 
defined the measure’s primary purpose: to prevent 
measures to combat racial discrimination by private 
actors from becoming law. See id,, at 391-92. An 
explicit reference to “race” on the face of measure is 
strong evidence that race is the predominant factor 
behind the change to the political process.

The requirement that the underlying issue must 
be racial in nature explains the Court’s conclusion in 
James v. Valtierra, 402 U.S. 137, 141 (1971), that the 
political restructuring doctrine did not apply to a 
state initiative that required a jurisdiction-wide 
referendum for approval of any low-rent public 
housing project. This state initiative did not facially 
single out race, see id. (noting the initiative required 
“referendum approval for any low-rent public 
housing project, not only for projects which will be 
occupied by a racial minority”), and the record did 
“not support any claim that a law seemingly neutral 
on its face is in fact aimed at a racial minority,” id.

The federalism principles invoked by Petitioner, 
Pet. Br. 28, and by Russell, Russell Br. 22-24, are 
therefore not implicated in the narrow circumstances 
in which the political restructuring doctrine applies. 
States generally retain broad authority to structure 
their political systems (and to use initiative or 
referendum processes to do so), but it is axiomatic 
that “these principles furnish no justification for a 
legislative structure which otherwise would violate 
the Fourteenth Amendment.” Hunter, 393 U.S. 
at 392; accord Gomillion, 364 U.S. at 342-47



39

(distinguishing Hunter v. City of Pittsburgh, 207 
U.S. 161 (1907)). States remain the laboratories of 
democracy. See New State Ice Co. u. Liebmann, 285 
U.S. 262, 311 (1932) (Brandeis, J., dissenting). The 
political restructuring doctrine does not dictate 
whether states may govern by popular initiative or 
legislation. States remain “free to vest” plenary 
decisionmaking authority over an issue at the state 
level or within the various political subdivisions that 
they create. Seattle, 458 U.S. at 480 n.23. States are 
prohibited only from building “unjustified official 
distinctions based on race,” Hunter, 393 U.S. at 391, 
into the political system itself, in violation of the 
Fourteenth Amendment.

Petitioner’s suggestion that the political 
restructuring doctrine applies only to 
antidiscrimination laws and not to race-conscious 
“preferences,” Pet. Br. 17-24, is doctrinally untenable 
and factually incorrect. The desegregation plan in 
Seattle was adopted to remedy de facto segregation, 
458 U.S. at 472 n.15, and, like race-conscious college 
admissions programs, was therefore not 
constitutionally mandated.8 States generally have 
no constitutional obligation to remedy injuries 
caused by private actors, although they may choose 
to do so through constitutionally permissible means. 
Cf. Parents Involved, 551 U.S. at 788 (Kennedy, J., 
concurring) (stating that the Constitution does not 
mandate “that state and local school authorities

8 Because the fair housing ordinance in Hunter regulated 
private conduct, 393 U.S. at 386-87, it also was not 
constitutionally mandated.



40

must accept the status quo of racial isolation in 
schools” caused by de facto segregation). Any benefit 
conferred by a constitutionally permissible (but not 
constitutionally mandated) race-conscious initiative 
could therefore be viewed as “preferential.” 
Petitioner’s argument confuses non-mandatory 
efforts to promote equality in our society with 
programs adopted to remedy violations of 
constitutional equal protection. Petitioner’s 
purported distinction is particularly incoherent when 
viewed in light of the core equal protection intei’est 
advanced by the political restructuring doctrine: 
reducing the prominence of race as a decisive factor 
in our political system. Creating a different political 
process for racial issues violates that principle, 
regardless of the label affixed to it. Unsurprisingly, 
Petitioner cites no decision from this Court 
recognizing that this purported distinction exists.

2. Distinct Political Process. A distinct 
political process exists when plenary decisionmaking 
authority resides at one governmental level, but the 
decision whether to take constitutionally permissible 
action with respect to race is moved to a different 
governmental level in which advocacy is necessarily 
more burdensome. In Seattle, the Court observed 
that Initiative 350 left “authority over all but one” 
aspect of deciding “what programs would most 
appropriately fill a school district’s educational 
needs” in the “hands of the local board,” placing only 
the “power over desegregative busing at the state



41

level.” 458 U.S. at 479-80.9 Likewise, in Hunter, 
passage of an ordinance by the City Council 
generally “sufficed unless the electors themselves 
invoked the general referendum provisions of the city

9 The Court repeatedly emphasized that this was the 
central (though limited) principle of its holding. See Seattle, 
458 U.S. at 474 (“[T]he community’s political mechanisms are 
modified to place effective decisionmaking authority over a 
racial issue at a different level of government.”); id. (“The 
initiative removes the authority to address a racial problem—  
and only a racial problem— from the existing decisionmaking 
body. . . . Those favoring the elimination of de facto school 
segregation now must seek relief from the state legislature, or 
from the statewide electorate. Yet authority over all other 
school assignment decisions, as well as over most other areas of 
educational policy, remains vested in the local school board.”); 
id. at 474 n.17 (noting that “the effect of the challenged action 
was to redraw decisionmaking authority over racial matters—  
and only racial matters”); 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.’” (quoting Lee, 318 F. Supp. at 718)); id. at 480 n.23 
(“[W]hat we find objectionable about Initiative 350 is . . . the 
racial nature of the way in which it structures the process of 
decisionmaking.”); id. at 485-86 (“[W]hen the political process or 
the decisionmaking mechanism used to address racially 
conscious legislation— and only such legislation— is singled out 
for peculiar and disadvantageous treatment, the governmental 
action plainly rests on distinctions based on race.” (internal 
quotation marks omitted)); id. at 485 n.29 (“It is the State’s 
race-conscious restructuring of its decisionmaking process that 
is impermissible, not the simple repeal of the Seattle Plan.”); id. 
at 487 (“It would be equally questionable for a community to 
require that laws or ordinances designed to ameliorate race 
relations . . .  be confirmed by popular vote of the electorate as a 
whole, while comparable legislation is exempted from a similar 
procedure.” (internal quotation marks and citations omitted)).



42

charter.” 393 U.S. at 390. But as a result of the 
charter amendment, “approval of the City Council 
was not enough” for “those who sought protection 
against racial bias.” Id. They had to secure passage 
of a charter amendment before they could even 
advocate for such an ordinance. See id.

Hence, mere decisions whether to enact or 
repeal constitutionally permissible race-conscious 
statutes or policies are not subject to strict scrutiny 
under the political restructuring doctrine because 
they do not create a distinct political process and, in 
fact, are made within the ordinary political process. 
Only this distinction can explain the different 
outcomes in Seattle and Crawford v. Board of 
Education, 458 U.S. 527 (1982), decided on the same 
day. In Crawford, the Court held that “the simple 
repeal or modification of desegregation or 
antidiscrimination laws, without more, never has 
been viewed as embodying a presumptively invalid 
racial classification.” Id. at 539; accord Seattle, 458 
U.S. at 485 (“This does not mean, of course, that 
every attempt to address a racial issue gives rise to 
an impermissible racial classification.”).

The Court in Crawford, contrasted the “mere 
repeal” of a statute requiring race-conscious policies 
with the racialized restructuring of the political 
process at issue in Hunter and Seattle. Crawford, 
458 U.S. at 540-41. The latter represents a racial 
classification for purposes of the Equal Protection 
Clause because such restructuring “distorts the 
political process for racial reasons” and “allocates 
governmental or judicial power on the basis of a 
discriminatory principle.” Id. at 541; see also id. 
at 546 (Blackmun, J., concurring) (“The Court always



43

has recognized that distortions of the political 
process have special implications for attempts to 
achieve equal protection of the laws.”); accord. 
Seattle, 458 U.S. at 485 (“But when the political 
process or the decisionmaking mechanism used to 
address racially conscious legislation—and only such 
legislation—is singled out for peculiar and 
disadvantageous treatment, the governmental action 
plainly rests on distinctions based on race.” (internal 
quotation marks omitted)).

Petitioner misreads Seattle when he argues that 
the majority in Seattle conceded that the political 
restructuring doctrine does not apply to race­
conscious college admissions. Pet. Br. 17. The 
majority was responding to the dissent’s argument 
that the majority’s holding would prevent any other 
entity within a university from overruling an 
admission committee’s decision to adopt race­
conscious admissions programs, with no discussion of 
whether state law changed the locus of plenary 
decisionmaking authority for this racial issue. See 
458 U.S. at 480 n.23; id. at 498 n.14 (Powell, J. 
dissenting). The majority observed that this 
hypothetical had “nothing to do with” the political 
process immediately after it reiterated that its 
holding applied only to the “comparative burden” of 
creating distinct decisionmaking processes for racial 
issues. See id. at 480 n.23. Moving decisionmaking 
down the hall or to a different office in the university 
does not necessarily change the level of political 
decisionmaking; rather, the relevant factual inquiry 
under the doctrine is whether the plenary—or 
ultimate—decisionmaking authority was altered. 
Here, the district court conducted just such an



44

inquiry and found that Proposal 2 shifted the locus of 
the plenary authority over whether to adopt race­
conscious admissions programs. The hypothetical 
that the Court in Seattle said was not implicated by 
the political restructuring doctrine is thus entirely 
different from the factual findings at issue here.

3. Application of the political restructuring
doctrine. The following hypotheticals underscore 
that the political restructuring doctrine can be 
applied consistently and in a straightforward 
fashion. The first two hypotheticals respond to 
Petitioner’s arguments and demonstrate that 
Petitioner’s arguments reflect a caricature or 
misunderstanding of the doctrine.

• Would federal fair housing legislation that 
preempts state or local ordinances violate the 
political restructuring doctrine? See Pet. 
Br. 5. No. Such legislation does not effect an 
unconstitutional restructuring because federal 
law already preempts state law under Article 
VI, assuming Congress is acting in an area of 
enumerated power. Any change in the locus of 
decisionmaking caused by federal legislation is 
a function of our preexisting constitutional 
system of federalism and therefore is not 
constitutionally problematic.

• Would a state law prohibiting localities from 
giving preferential credit terms to minorities 
as a group violate the political restructuring 
doctrine? See Pet. Br. 23-24. No. The 
prohibited conduct would be unconstitutional 
absent any tailored remedial justification for 
such preferential credit or flexibility in its



45

application. See Ada rand., 515 U.S. at 237-38; 
Croson, 488 U.S. at 507-08. Given the state’s 
compelling interest in prohibiting conduct that 
is unconstitutional, the law would satisfy 
strict scrutiny. See Section I.B, supra. For the 
same reason, a state referendum solely 
prohibiting official discrimination on the basis 
of race would survive strict scrutiny.

If Congress, by statute, or the President, by 
executive order, decided to ban affirmative 
action at West Point and the other military 
academies, would such action be subject to 
strict scrutiny under the political 
restructuring doctrine? No. Congress has 
plenary authority over the military academies 
and any delegated authority remains subject 
to ultimate congressional control. The same is 
true of fedei'al agencies, whose authority 
extends only as far as the statutes creating 
them specify. See City of Arlington v. FCC, 
133 S. Ct. 1863, 1874 (2013) (“Where Congress 
has established a clear line, the agency cannot 
go beyond it . . . .”). The political restructuring 
doctrine is implicated only when the locus of 
plenary decisionmaking authority is changed. 
Modifying or withdrawing a lawful delegation 
of authority to a subsidiary governmental 
decisionmaker does not alter the locus of 
ultimate decisionmaking authority. See supra 
pp. 40-41.10

10 The same analysis would apply to state legislatures. If 
they have plenary authority to establish the jurisdiction of



46

• Would a state constitutional amendment 
defining the state analogue to the Equal 
Protection Clause to include disparate-impact 
discrimination only for the suspect 
classification of race (i.e., prohibiting a broader 
swath of discriminatory activity than is 
required by the federal Equal Protection 
Clause but only with respect to racial 
discrimination) be subject to strict scrutiny 
under the political restructuring doctrine? 
Yes, because it creates a distinct 
decisionmaking process and explicitly applies 
that process only to race, but doing so might 
well satisfy strict scrutiny. For the same 
reason, a state constitutional amendment 
prohibiting any level of state government from 
adopting a disparate-impact standard for race 
discrimination would be subject to strict 
scrutiny. On the other hand, a provision that 
applies a disparate-impact standard (or 
prohibits any level of state government from 
adopting a disparate-impact standard) for all 
suspect classifications likely would not trigger 
strict scrutiny because such a provision does 
not explicitly single out race, and it is unlikely 
that litigants could prove that race was the

agencies or subsidiary political bodies, legislation on a racial 
issue would not change the ultimate decisionmaking authority, 
which remains with the legislature. But if the state 
constitution grants political subdivisions plenary constitutional 
authority over certain issues (as Michigan’s constitution does 
for the Boards of Regents), legislation that removes or curtails a 
political subdivision's decisionmaking authority on a racial 
issue would trigger strict scrutiny.



47

predominant factor behind a change that 
applies to all suspect classifications.

II. PROPOSAL 2 VIOLATES THE EQUAL 
PROTECTION CLAUSE UNDER THE 
POLITICAL RESTRUCTURING 
DOCTRINE.

A. Proposal 2 Created a Racial 
Classification.

1. Race as Predominant Factor. Contrary
to Petitioner’s position, race-conscious admissions 
programs, and changes to the decisionmaking 
process related to such programs, are unquestionably 
about race. Diversity in higher education is a 
compelling governmental interest because it provides 
broad “educational benefits” to individuals of all 
races and benefits society at large. Grutter, 539 U.S. 
at 330. Constitutionally permissible race-conscious 
admissions programs advance this compelling 
interest, however, by increasing admissions for 
individuals from underrepresented groups and by 
providing increased opportunity for students of 
different races to interact in the educational process. 
Proposal 2 altered the ordinary political process for 
deciding whether or not public universities would 
adopt such programs. As in Hunter and Seattle, the 
racial nature of the topic was the predominant 
factor—indeed, the only salient factor—driving the 
decision to create a distinct political decisionmaking 
process for only certain aspects of university 
operations. The record amply supports the district 
court’s factual finding, affirmed by the Sixth Circuit, 
that the decision to alter the ordinary political 
process for adopting university admissions programs



48

in Michigan is “unexplainable on grounds other than 
race,” Shaw, 509 U.S. at 643.

Like the amendment to the city charter in 
Hunter, Proposal 2 on its face constructed a distinct 
and more onerous decisionmaking process governing 
adoption of “ [ajffirmative [a]ction” programs. Pet. 
App. 8a-9a (citing Mich. Const, art. I, § 26). The text 
of the Michigan initiative explicitly partitions the 
political process on the basis of “race,” Pet. App. 8a. 
This explicit reference to race in the text of the 
amendment was reinforced by the principal drafter 
of Proposal 2, who stated that it was designed “to 
prohibit programs that granted racial preferences, 
that is, affirmative action programs,” Supp. Pet. 
App. 327a. Just as Initiative 350 was a calculated 
response to the Seattle School Board’s adoption of a 
racial desegregation program, see Seattle, 458 U.S. 
at 471-72, the campaign to place Proposal 2 on the 
Michigan ballot began almost immediately after this 
Court’s holding in Grutter that the State may utilize 
race-conscious admissions programs for its colleges 
and universities. And also like Initiative 350, see 
Seattle, 458 U.S. at 479-80, Proposal 2 lacked any 
historical antecedent in Michigan: No prior
constitutional amendment in Michigan had dealt 
with university admissions or with anything relating 
to higher education governance or affairs.

The inclusion in Proposal 2’s text of “sex” and 
“national origin,” in addition to “race,” does not alter 
the conclusion that Proposal 2 was predominantly 
racial in nature. The charter amendment in Hunter, 
for example, applied to any fair housing ordinance 
prohibiting discrimination based on “race, color, 
religion, national origin or ancestry,” 393 U.S.



49

at 387, yet the Court concluded that it created a 
“meaningful and unjustified official distinction^ 
based on race,” id. at 391. Governmental action need 
not rest “solely” on race to be constitutionally 
suspect. Arlington Heights, 429 U.S. at 265; see also 
Hunter u. Underwood, 471 U.S. 222, 232 (1985) 
(holding that an additional purpose behind a 
constitutional provision would “not render nugatory” 
the impermissible racial motivation). Rather, strict 
scrutiny is triggered when race is “the predominant 
factor” motivating the decision, Bush, 517 U.S. at 
959 (internal quotation marks omitted).11 As 
demonstrated above, race—and not the other 
characteristics included in the text of Proposal 2— 
was the motivating factor behind Proposal 2’s 
enactment. See Pet. App. 26a n.4 (“Here, as in 
Hunter, the clear focus of the challenged amendment 
is race. The history of Proposal 2 and its description 
on the ballot leave little doubt.”).

11 Petitioner’s related argument that Proposal 2 is not 
constitutionally suspect because it disadvantages a majority of 
Michigan’s population. Pet. Br. 26, is misplaced. The political 
restructuring doctrine’s application is dependent on the racial 
nature of the issue subject to the distinct decisionmaking 
process, not whether members of one race or another are 
disadvantaged by that change. See Section I.C supra. After all, 
the majority-minority legislative districts created in Shaw were 
unconstitutional because race was the predominant factor 
behind the decision to draw them, without regard to the 
underlying voting strength of voters in any district or within 
the state as a whole. In any event, the charter amendment in 
Hunter removed fair housing protections that distinctly 
benefited various religious and ethnic minority groups that, 
grouped together, would likely represent a majority of the 
electorate.



50

Petitioner’s argument that Proposal 2 should not 
be subject to strict scrutiny because there is no 
evidence that it was intended to harm minorities 
conflates purposeful discrimination with ill will 
toward a particular racial group. Pet. Br. 38 (“It is 
that crucial factor—animus, or discriminatory 
intent—that the Sixth Circuit en banc majority did 
not find in Seattle School District’s test.”). This 
Court has made clear, however, that racial animus is 
not a required element of an equal protection claim: 
strict scrutiny applies where the racial classification 
is apparent on its face or a facially neutral decision is 
unexplainable on grounds other than race. Feeney, 
442 U.S. at 272. There was, for example, no evidence 
in Shaw or Bush that the state legislature intended 
to harm white voters (or minority voters) when it 
drew the majority-minority legislative districts, just 
as there was no evidence that the University of 
Michigan intended to harm white applicants (or 
minority applicants) in Gratz. Petitioner’s 
suggestion that this Court’s decision in Romer v. 
Evans, 517 U.S. 620, 632 (1996) (holding that the 
challenged initiative violated the Equal Protection 
Clause because it was “inexplicable by anything but 
animus”), somehow makes ill will toward a 
particular group a necessary element of an equal 
protection claim confuses necessity with sufficiency 
and is incompatible with decades of this Court’s 
precedents.

For his part, Russell asserts that the political 
restructuring doctrine is incompatible with 
Washington v. Davis and Arlington Heights, 
premised on the conclusory assertion that the record 
does not establish a “discriminatory purpose.”



51

Russell Br. 15. The district court and Sixth Circuit, 
however, both found that the fundamental purposes 
of Proposal 2 were to prohibit race-conscious 
admissions programs (which advance the compelling 
interest of promoting diversity by increasing the 
likelihood that some minority applicants are 
admitted) and to create a different and more 
burdensome decisionmaking process for any future 
effort to alter that outcome. Pet. App. 21a-22a; 
Supp. Pet. App. 328a. Moreover, like the 
amendment to the city charter at issue in Hunter, 
the text of Proposal 2 explicitly references “race” 
while establishing a different and more onerous 
decisionmaking process.

The enactment of Proposal 2 is thus 
“unexplainable on grounds other than race,” Shaw, 
509 U.S. at 643 (internal quotation marks omitted), 
and, like Shaw and Bush, satisfies the requirement 
in Washington u. Davis for purposeful conduct. 
Purpose may, but need not, include negative feelings 
toward an individual or group because of race. After 
all, even purportedly benign racial classifications are 
subject to strict scrutiny, Croson, 488 U.S. at 494, 
and a racial classification need not burden one race 
more than another to be deemed purposeful, see 
Shaw, 509 U.S. at 651. Establishing purpose 
requires only demonstrating that race is the 
predominant factor motivating the action. See Bush, 
517 U.S. at 959.

2. Distinct Political Process. The elected
Boards of Regents retain plenary authority over all 
university matters, including general authority to set 
admissions criteria. But Proposal 2 removed the 
decision whether or not to adopt constitutionally



52

permissible race-conscious admissions programs 
from that locus of political decisionmaking and 
embedded it at the constitutional level.

Except for Proposal 2, the Michigan Constitution 
includes no other provisions that create an exception 
to the ordinary operation of the state’s colleges, 
universities and graduate schools. Pursuant to 
Article VIII, § 5 of the state constitution, Michigan’s 
public universities are controlled by independent 
Boards of Regents, each of which has the power of 
“general supervision of its institution and control 
and direction of all expenditures from the 
institution’s funds.” Michigan statutes implement 
this constitutional provision by vesting full 
governing authority in the Boards of Regents, 
encompassing the power to enact by-laws and 
regulations to promote and achieve the university’s 
educational mission. See Mich. Comp. Laws Ann. 
§§ 390.3-.5 (West 2011). Regents have always 
exercised autonomy over admissions policies, and 
they have historically delegated responsibility to 
establish admissions standards, policies and 
procedures to units within the institutions, including 
central admissions offices, schools and colleges.

As the district court held and the Sixth Circuit 
affirmed, Pet. App. 31a; Supp. Pet. 327a, the Boards 
of Regents are political bodies under state law. 
Regents are popularly elected or appointed by the 
elected governor, and thus politically accountable. 
For more than a century, the Michigan Supreme 
Court has described the Boards of Regents as “the 
highest form of juristic person known to the law, a 
constitutional corporation of independent authority, 
which, within the scope of its functions, is co­



53

ordinate with and equal to that of the Legislature.” 
Bd. of Regents of the Univ. of Mich. v. Auditor Gen., 
132 N.W. 1037, 1040 (Mich. 1911). To fulfill this 
role, the governing Boards hold regular public 
meetings, at which they receive reports from the 
President, Provost, and other university officials and 
take public comment. Pet. App. 30a-31a; Supp. C.A. 
Br. of Universities 21-22.

Race-conscious admissions programs have 
played important roles within the political dynamics 
of the Boards of Regents. Public meetings have 
specifically dealt with issues of policy regarding 
affirmative action in admissions. Pet. App. 30a-31a; 
Supp. C.A. Br. of Universities 21-23. Elections for 
positions as Regents have specifically focused on the 
positions of candidates as to race-conscious 
university admissions, and some candidates have in 
fact included their views on race-conscious 
admissions policies as part of their campaign 
platforms. Pet. App. 32a-33a (citing League of 
Women Voters 2005 General Election Voter Guide, 
available at http://www.lwvka.org/guide04/regents 
.html (last visited May 22, 2012) (noting that a 
candidate for the Board of Regents pledged to “work 
to end so-called ‘Affirmative Action,’ a racist, 
degrading system”).12

12 The Boards’ delegation of power to establish admissions 
standards does not diminish the Boards’ plenary power over 
that aspect of university operations; Michigan law clearly 
authorizes them to revoke that delegation at any time or to 
override decisions made by the delegee. Nor does the 
delegation of power from an elected body to an unelected body

http://www.lwvka.org/guide04/regents


54

Proposal 2 thus constructs a distinct political 
process for making decisions related to higher 
education policy. It preserves the traditional control 
exercised by state universities’ elected or governor- 
appointed boards as to all matters exclusive of the 
admissions process, and, as to admissions, continues 
to preserve the authority of the Boards of Regents to 
determine whether to “grant preferential treatment” 
based on legacy status, athletics, or most other 
factors or group identities other than race. However, 
it introduces a new requirement that a statewide 
constitutional amendment must be passed before the 
Boards can even consider whether to adopt race­
conscious admissions policies that meet this Court’s 
stringent Fourteenth Amendment standards 
(including the exact admission policy that this Court 
held was constitutionally permissible in Grutter).

Finally, this distinct process is more 
burdensome. The district court found that there “is 
no question” that requiring a constitutional 
amendment before “the State and its political 
subdivisions” can adopt race-conscious admissions 
programs “makes it more difficult” for those who 
support race-conscious programs to advocate 
successfully. Supp. Pet. App. 328a. The Sixth 
Circuit agreed with this factual finding. Pet. 
App. 35a-37a. The record amply supported this 
finding and established that a statewide initiative to

make that power, when ultimately exercised, non-political. See, 
e.g., Mistretta v. United States, 488 U.S. 361, 393 (1989) 
(referring to the United States Sentencing Commission, 
operating under delegated authority, as performing work of a 
“significantly political nature”).



55

amend the Michigan Constitution is more onerous 
that the alternatives that existed before Proposal 2’s 
enactment, Supp. Pet. App. 281a-82a; see also Pet. 
App. 36a; see generally Brief of Amici Curiae Political 
Scientists Gary Segura et al. in Support of Chase 
Cantrell Respondents.

Following Proposal 2’s enactment, the only 
relevant decisionmaker for whether or not to adopt 
race-conscious admissions programs is the electorate, 
and the only mechanism available is a statewide 
initiative campaign. Yet before even beginning to 
advocate meaningfully before the electorate, 
supporters of race-conscious admissions programs 
must secure signatures from 10% of the total vote 
cast in the last gubernatorial election within a 
relatively short signature-gathering window or 
secure support from two-thirds of both houses of the 
state legislature. J.A. 44-45, 47-48; Mich. Const, 
art. XII, § 2. Success is contingent upon having 
millions of dollars in campaign funds. J.A. 47. In 
contrast, individuals who wish to advocate for other 
admissions criteria can pursue the informal and low- 
cost alternatives of lobbying university officials and 
speaking at admissions committee meetings, 
lobbying individual Regents or speaking at public 
meetings of the Regents, or attempting to affect 
elections of individual Regents to influence that 
body. Petitioner’s reliance on Judge Sutton’s en banc 
dissent in the Sixth Circuit to argue that amending 
the state constitution is less burdensome than 
advocating within the political process that 
ordinarily applies to issues affecting the state’s 
universities simply ignores the factual findings made 
by the district court, and Petitioner cites no basis for



56

reversing those findings under appropriate legal 
standards, see Easley, 532 U.S. at 242 (holding 
appellate courts review trial court’s factual findings 
“only for ‘clear error’”).

B. Proposal 2 Does Not Advance a 
Compelling Interest.

The State of Michigan never identified before 
the district court or the Sixth Circuit any compelling 
state interest that Proposal 2 serves, much less is 
needed to achieve. Pet. 45a. Having failed to do so 
below, Petitioner has waived this issue. See 
Singleton v. Wulff, 428 U.S. 106, 120 (1976); Hormel 
v. Helvering, 312 U.S. 552, 556 (1941).

If the Court concludes that this issue is not 
waived, it should remand so the district court and 
Sixth Circuit can address this fact-specific issue in 
the first instance. See, e.g., Adarand, 515 U.S. 
at 238-39. But if the Court believes it appx-opriate to 
decide the issue, it should hold that, even had the 
state attempted to advance a compelling state 
interest, no such interest exists.

As this Court held in Grutter, 539 U.S. at 334, 
343, “the educational benefits that flow from a 
diverse student body” constitute a compelling state 
interest in the specific context of admissions policy in 
higher education, justifying use of race in a “flexible, 
nonmechanical way” as part of a “truly 
individualized consideration” of each and every 
applicant. The Court has never suggested, let alone 
held, that eradication of a compelling state interest 
can itself promote a compelling state interest.



57

Petitioner nonetheless attempts to avoid the 
application of strict scrutiny to Proposal 2 because he 
and others believe that it will ultimately reduce the 
relevance of race within society. This Court, 
however, has long held that state action drawing 
racial classifications is not excused from strict 
scrutiny simply because its ultimate aim may be 
laudable. See Croson, 488 U.S. at 493 (holding that 
there is “simply no way of determining what 
classifications are ‘benign’ or ‘remedial’” without 
applying strict scrutiny to all racial classifications). 
Utilizing an approach that will itself increase the 
salience of race within our political system—and 
embeds the fact that a racial question necessitates a 
decisionmaking process distinct from other similar 
matters for all to see in the state constitution— 
cannot he justified because its supporters believe it 
will, on net, reduce the salience of race in society. 
See Parents Involved, 551 U.S. at 782 (Kennedy, J., 
concurring). As Justice Kennedy has reminded us, 
we make no “analytical leap forward" by assuming 
that if race’s role in society is a problem, “race is the 
instrument with which to solve it.” Id. at 797. The 
empirical consequences of Proposal 2, and the 
extreme and unprecedented racial polarization that 
it engendered, demonstrate forcefully why this 
justification cannot be accepted. See generally 
Kinder Br.

C. Proposal 2 Is Not Narrowly Tailored.

Other avenues to effect political change are 
available to those opposing the consideration of 
constitutionally permissible consideration of race as 
a factor in admissions. These avenues are either 
facially race neutral or do not balkanize the political



58

process by making race a predominant factor behind
the establishment of a unique governmental
decisionmaking process.

• Opponents of race-conscious admissions 
policies may advocate against such policies to 
members of the Boards of Regents or to the 
appropriate committees to which the Boards of 
Regents have delegated their plenary 
authority. Opponents may also elect new 
members of the Board of Regents committed to 
oppose race-conscious policies. These 
approaches focus on resolving the issue within 
the political process without establishing a 
distinct process for resolving racial issues, and 
thus do not unnecessarily underscore that race 
is a relevant feature of our political system.

• Michigan may amend its state constitution 
without establishing a racial classification 
within its political processes. This might 
include, for example, amending the 
constitution to allow admissions policies that 
considered only applicants’ GPA and SAT 
scores, in effect preventing adoption of any 
individualized, holistic, multi-factor review 
policies that pass muster under Grutter, but 
doing so by prohibiting consideration of any 
factors but those enumerated in the state 
constitution. In contrast to changing the locus 
of decisionmaking selectively, this approach 
minimizes the focus on race as a singular 
feature of our political system by removing all 
authority for setting admissions criteria from 
the Boards of Regents. Because such an 
approach “remove [s] authority from local”



59

decisionmakers and “vest[s] all 
decisionmaking power in state officials” with 
respect to admissions criteria, Seattle, 458 
U.S. at 480 n.23, it would implicate the 
political restructuring doctrine only if 
plaintiffs could prove that race was the 
“predominant factor” behind the change, Bush, 
517 U.S. at 959 (internal quotation marks 
omitted); cf. Valtierra, 402 U.S. at 141.

• Michigan may amend the state constitution to 
transfer all authority over admissions policies 
from the Boards of Regents to the state 
legislature or some other political body. A 
state does not create a distinct political 
process for a racial issue by placing plenary 
authority over all aspects of college admissions 
in a different political body that a majority of 
citizens believes is better suited to resolve 
political questions or would be more 
responsive to the public. Vesting plenary 
authority over all admissions issues in a 
different political body thus does not make 
race an outcome-determinative feature of our 
political system.

Each of these approaches would achieve the end of 
removing race as a factor in higher education 
admissions. Petitioner has not demonstrated, and 
cannot demonstrate, that “available, workable race- 
neutral alternatives do not suffice,” Fisher, 133 S. Ct. 
at 2420.



60

III. S T A R E  D E C IS IS  COUNSELS AGAINST 
THE DRAMATIC STEP OF OVERRULING 
OR SUBSTANTIALLY LIMITING THE 
POLITICAL RESTRUCTURING 
DOCTRINE.

Petitioner and Russell suggest that if the 
political restructuring doctrine poses a barrier to 
Proposal 2, the doctrine should be overruled. All of 
the relevant factors that this Court has identified for 
deciding whether to adhere to the principle of stare 
decisis counsel against taking the extreme measure 
of overturning such long-standing precedent.

First, the political restructuring doctrine “has in 
no sense proven ‘unworkable,’ representing as it does 
a simple limitation beyond which a state law is 
unenforceable.” Planned Parenthood, v. Casey, 505 
U.S. 833, 855 (1992) (internal citation omitted). 
Courts are fully capable of conducting the factual 
inquiry necessary to assess whether a government 
action merely references race or is instead a 
constitutionally suspect race-based political 
restructuring.

Second, the political restructuring doctrine is 
not just consistent with, but serves as a necessary 
component of, the Court’s current equal protection 
jurisprudence. Overruling Hunter and Seattle would 
call into question numerous cases in which this 
Court has relied on the societal harm caused when 
governmental action emphasized the importance of 
race as a distinct characteristic in our political 
system. See Sections I.B & II.A, supra. Far from 
being “a remnant of abandoned doctrine,” Casey, 505 
U.S. at 855, the political restructuring doctrine



61

continues to have “significant application [and] 
justification” within the Court’s broader equal 
protection jurisprudence, id.

Finally, Russell’s assertion that the limited 
number of cases involving the political restructuring 
doctrine demonstrates that it is unnecessary to 
vindicate Fourteenth Amendment interests, Russell 
Br. 31-33, implies that the only way that reliance 
exists is where state governments persistently flaunt 
this Court’s precedents. It is equally likely, if not far 
more likely, that the opposite is true: states and
localities have attempted to change the political 
decisionmaking process along such overtly racial 
lines so rarely over the last half century because it is 
clear that doing so would violate the Equal 
Protection Clause.

At bottom, Petitioner and Russell recycle 
arguments used to oppose the holdings in the Court’s 
most recent affirmative action decisions, where it 
declined to rule that race-conscious admissions 
programs are per se unconstitutional, see Fisher, 133 
S. Ct. at 2421; Grutter, 539 U.S. at 343. Yet 
Petitioner’s and Russell’s assertions that race­
conscious admissions are unnecessary and bad 
policy, Pet Br. 21-23, 31-36; Russell Br. 29-30 & n.5, 
are irrelevant because the constitutionality of race­
conscious admissions programs is not at issue here, 
as Petitioner conceded up until now. See Pet. 13 n.2. 
The political restructuring doctrine prohibits only 
creating a distinct political decisionmaking process 
to govern whether to adopt constitutionally 
permissible race-conscious programs, not the 
ultimate decision whether or not to do so.



62

CONCLUSION

For the reasons stated above, the court of 
appeals should be affirmed.

August 23, 2013

L a u r e n c e  H . T r ibe  
Hauser Hall 420 
1575 Massachusetts 

Avenue
Cambridge, MA 02138 
(617) 495-1767

J o s h u a  I. C iv in  
NAACP Legal Defense & 

Educational Fund, Inc. 
1441 I Street, NW,

10th Floor
Washington, DC 20005 
(202) 682-1300

E r w in  C h e m e r in s k y  
University Of California, 

Irvine School Of Law 
401 East Peltason Drive, 

Suite 1000 
Irvine, CA 92697 
(949) 824-7722

Respectfully Submitted,

M a r k  D . R o s e n b a u m  
Counsel of Record 

D a v id  B. Sa p p  
ACLU Foundation of 

Southern California 
1313 West Eighth Street 
Los Angeles, CA 90017 
(213) 977-9500 
mrosenbaum@ACLU- 

SC.org

K a r i n A . D e M a si 
N ic o l e  M .P e l e s  
Cravath, Swaine &

Moore LLP 
825 Eighth Avenue 
New York, NY 10019 
(212) 474-1000

K a r y  L. M o ss  
M ic h a e l  J. S t e in b e r g  
M a r k  P. F a n c h e r  
ACLU Fund Of Michigan 
2966 Woodward Avenue 
Detroit, MI 48201 
(313) 578-6814

mailto:mrosenbaum@ACLU-SC.org
mailto:mrosenbaum@ACLU-SC.org


63

S h e r r il y n  If il l  
D a m o n  T . H e w it t  
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street,
5th Floor
New York, NY 10006 
(212) 965-2200

S t e v e n  R. S h a p ir o  
D e n n is  D . Pa r k e r  
ACLU Foundation 
125 Broad Street,
18th Floor
New York, NY 10004 
(212) 549-2500

M e l v in  B u t c h  
H o l l o w e l l , J r . 

Detroit Branch NAACP 
8220 Second Avenue 
Detroit, MI 48202 
(313) 980-0102

J e r o m e  R. W a t s o n  
Miller, Canfield, Paddock 

And Stone, P.L.C.
150 West Jefferson,

Suite 2500 
Detroit, MI 48226 
(313) 963-6420

D a n ie l  P. T o k a ji 
The Ohio State University 

Moritz College Of Law 
55 West 12th Avenue 
Columhus, OH 43206 
(614) 292-6566

Counsel for Cantrell Respondents