Schuette v. BAMN (12-682)

argument 12-682

Schuette v. BAMN

Supreme Court of the United States 1h 1m 4 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the central constitutional issue in Schuette v. BAMN?

John G. Roberts 0:02

We'll hear argument next today in case 12682, Schuette versus the Coalition to Defend

Daniel E. Bursch 0:08

Affirmative Action. Mr. Bursch. Thank you, Mr. Chief Justice, and may it please the Court. The issue in this case is whether a Michigan constitutional provision requiring equal treatment violates equal protection. And for two reasons, the answer is no. First, unlike the laws at issue in Hunter and Seattle, Section 26 does not repeal an anti-discrimination law. Instead, it repeals preferences, and thus it's an impediment to preferential treatment, not equal treatment.

Elena Kagan 0:39

It had nothing to do with an anti-discrimination law. It had to do with a remedy, de facto segregation. Why isn't this identical to Seattle?

Daniel E. Bursch 0:50

Justice Sotomayor, it's not identical because of the remedy issue. In Seattle, they were trying to create, in the Court's words, equal educational opportunity by imposing a remedy that would result in equality in the schools. You don't

Elena Kagan 1:02

think that the proponents of affirmative action are attempting to do the same thing? One of the bill sponsors here said that this constitutional amendment will bring back desegregation in Michigan, and it appears to have done just that.

Daniel E. Bursch 1:16

Well, there's two points to that question, and I'll address them both. First, on the merits, under Grutter, the point of preferences in university admissions is cannot be solely the benefit of the minority, because under Grutter, it's supposed to benefit the campus as a whole through diversity, which we think is a laudable goal. It's a forward-looking action, not a backward-looking action to remedy past discrimination. And we know that because under Grutter, you can use preferences, whether or not there's de facto or de jure segregation, simply to get the benefit. But with respect to your point about the University of Michigan and what has or has not happened here, two thoughts on that. First, we have the statistics that we discuss in our reply brief, where it's not clear that the diversity on Michigan's campus has gone down.

Daniel E. Bursch 1:58

But our main point on that is not those numbers, but the fact that there are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways. For example, we know that... I

Elena Kagan 2:09

thought that in Grutter, all of the social scientists had pointed out to the fact that all of those efforts had failed. It's one of the reasons why I think it was the law school plan in Michigan was upheld.

Daniel E. Bursch 2:23

Well, there's social science evidence that goes both ways, but I want to focus on the University of Michigan because there's two things that they could be doing right now that would get them closer to the race-neutral goal. The first thing is that they could eliminate alumni preferences. Other schools have done that. They have not. That's certainly one way that tilts the playing field away from underrepresented minorities. The other one, and this is really important, is the focus on social economics. It's always

Elena Kagan 2:46

wonderful for minorities that They finally get in. They finally have children. And now you're going to do away for that preference for them. It seems that the game post keeps changing every few years for minorities.

Daniel E. Bursch 3:00

Given the makeup of Michigan's alumni right now, certainly that playing field would be tilted the other way. The other thing that we press is socioeconomic diversity. And at the University of Michigan, there was a stat in the Wall Street Journal just two days ago that if you measure that by Pell Grants, the number of students who are eligible for those, at the University of Michigan, the number of students who have Pell Grants is half what it is at more progressive institutions like Berkeley and the University of Texas at Austin. So the University of Michigan could be trying harder. But our point isn't to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about.

Daniel E. Bursch 3:36

The question is whether the people of Michigan are had the choice through the democratic process to accept this Court's invitation in Grutter to try race-neutral means.