Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Of considerable importance to the possible validity of any substantial congressional restriction on judicial provision of remedies for de jure segregation violations are two decisions contrastingly dealing with referenda-approved restrictions on busing and other remedies in Washington State and California. 1 Voters in Washington, following a decision by the school board in Seattle to undertake a mandatory busing program, approved an initiative that prohibited school boards from assigning students to any but the nearest or next nearest school that offered the students’ course of study; there were so many exceptions, however, that the prohibition in effect applied only to busing for racial purposes. In California the state courts had interpreted the state constitution to require school systems to eliminate both de jure and de facto segregation. The voters approved an initiative that prohibited state courts from ordering busing unless the segregation was in violation of the Fourteenth Amendment, and a federal judge would be empowered to order it under United States Supreme Court precedents.
By a narrow division, the Court held unconstitutional the Washington measure, and, with near unanimity of result if not of reasoning, it sustained the California measure. The constitutional flaw in the Washington measure, the Court held, was that it had chosen a racial classification – busing for desegregation – and imposed more severe burdens upon those seeking to obtain such a policy than it imposed with respect to any other policy. Local school boards could make education policy on anything but busing. By singling out busing and making it more difficult than anything else, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority. 2 The Court discerned no such impediment in the California measure, a simple repeal of a remedy that had been within the government’s discretion to provide. Moreover, the state continued under an obligation to alleviate de facto segregation by every other feasible means. The initiative had merely foreclosed one particular remedy – court-ordered mandatory busing – as inappropriate. 3
The Court subsequently declined to extend the reasoning of these cases to remedies for exclusively de facto racial segregation. In Schuette v. Coalition to Defend Affirmative Action, 4 the Court considered the constitutionality of an amendment to the Michigan Constitution, approved by that state's voters, to prohibit the use of race-based preferences as part of the admissions process for state universities. A plurality of the Schuette Court restricted its prior holdings as applying only to those situations where state action had the serious risk, if not purpose, of causing specific injuries on account of race. 5 Finding no similar risks of injury with regard to the Michigan Amendment and no similar allegations of past discrimination in the Michigan university system, the Court declined to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended. 6 The plurality opinion and a majority of the Court, however, explicitly rejected a broader
political process theory with respect to the constitutionality of race-based remedies. Specifically, the Court held that state action that places effective decision making over a policy that
inures primarily to the benefit of the minority at a different level of government is not subject to heightened constitutional scrutiny. 7