constitutional provision requiring equal treatment violates equal protection and for two reasons the answer is no first unlike the laws that issue in hunter and seattle section twenty six does not repeal an anti discrimination law instead it repeals preferences and thus it's an impediment to preferential treatment not equal treatment 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 i've justice sotomayor it's not identical because of the remedy issue i mean seattle they were trying to create in the courts words equal educational opportunity by imposing a remedy that would result in the proponents of affirmative action are attempting to do the same thing one of the bill's sponsors here said that this constitutional amendments will bring back the segregation in michigan appears to have done just that well that there's two points to that question and i'll address them both first on the merits under groot or the point of preferences in university admissions cannot be solely the benefit of the minority because undergird are supposed to benefit the campus as a whole through diversity which we think is a lot of goal it's a forward looking action not a backward looking action to remedy past discrimination and we know that because under group or you can use preferences whether or not there's de facto or does very 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 admissions campus has gone down but i mean 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 thought that a group or all of the social sciences had pointed out to the fact that all of those efforts had failed one of the reasons why the thinking was so law school plan in michigan was 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 but certainly one way that tilts the playing field away from under represented minorities the other one and this is really important is the focus on social ways nominees are full for minorities that they finally get in they finally have children and now you're going into a way for that preference or that it seems that the game post keeps changing the few years for minorities given the make up of michigan's alumni right now certainly that playing field to be told that the other way the other thing that we press is social economic diversity and at the university of michigan there was a stat in the wall street journal just two days ago that if you agreements 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 good or bad thing because that's not what this case is about the question is whether the people of michigan had the choice through them that credit process to accept this court's invitation in sticking with how hard is that under the new political process and i think the chart that we have on page seventeen of our reply brief explains that it's really easier to change race based admissions policies now than it was before section twenty six and that's one basis but i think the more fundamental basis is to say what seattle is about and if you can indulge me i'm going to suggest that seattle could mean one of three things one of those i think you should clearly reject and then the other two i think are possible interpretations that you could adopt when seattle talks about racial classifications it focuses on laws that have a racial focus now right out of the box equal protection is about people not about laws but even more fundamentally that cannot be the right test at a minimum that part of seattle has to go because if you had race neutral law like michigan's equal protection clause which forbids discrimination on the basis of race or sex you know it mirrors the concept of the federal clause that itself would be subject to strict scrutiny because it has a racial focus so we know that can't be right and that's respond its position so that leads you to other choices and one would be an incremental change to this political restructuring doctrine the other would be a more aggressive change the incremental change would be to interpret racial classification in seattle as meaning a law that one repeals an anti discrimination provision as it did in hunter in seattle and to remove that issue to a higher level of the decision making process and because michigan's law requires equal treatment only one because it was a preference for blacks to get it's a better schools that's the way the case was pitched that was its justification and to integrate the society affirmative action has the  same aim we've said that in fisher it should be to do the versified the population so it favors diversity as opposed to d c segregation or but there's a difference between favoring diversity as a abstract concept on campus which  clearly allows and remedying past discrimination which was the point of the bussing in seattle and that's why we're really in a post seattle world now because what i really don't know  segregation in seattle that's correct because at the time of seattle's decision we didn't yet have parents involved and so there wasn't a strict scrutiny test that was being applied to that bussing program and so you didn't have to go as far as you w needs to be reexamined and the way that you could do that is to look at what seattle and hunter are really doing which is falling right into the washington d davis line of cases both of those cases could have been resolved by saying one there's a disparate impact and two given the facts and circumstances in one thousand nine hundred sixty nine akron ohio in one thousand nine hundred two seattle washington that there was discriminatory and in this based on race and if you did that you could reconcile those cases with washington d davis and the entire district court concluded properly that there wasn't even a question of material disputed fact with respect to intent this is that pages three seventeen to three nineteen of the supplemental appendix petition and that's because the primary motivation for section twenty six included so many now discriminatory reasons including the belief of some in michigan that preferences are themselves race discrimination others that race neutral alternatives is actually a better way to achieve campus diversity that results in better outcomes for under represented minority students some could believe that the preferences result in mismatch as justice thomas census it seems to me a good distinction for hunter and monkey versus right regional talk yes but not necessarily distinction and yeah because you know you can argue well there are other methods that are less racially to this and i think and i'd like to come back to writing because that fits into this fra too but i think if you have any question about what seattle really meant the place to look is the later decision in cuyahoga falls because in cuyahoga the court specifically mentions quote the evil of discriminatory intent present in seattle  eighty seven of the opinion and it also talks about the decision makers statements as evidence of discriminatory intent in the hunter case at page one ninety five and so i think if you look at cuyahoga falls it's already done some of the work for you if you're going to take the more conservative route and said i don't see how his intent the argument would be any different here one of the main sponsors of the spill said it was intended to segregate again the voters in seattle were not all filled with animus some of them just cared about their children not leaving now not having outsiders come in i mean they were there's always voters who have good intent but that's true and there's always some bad apples to it we don't dispute that point but but here you have a district court holding that there's not even a material question of fact with respect and in this because there are so many reasons that could be advanced legitimate reasons again about mismatch and about the benefits of  that i think it's much harder in seattle your honor but you have to fit reitman into this discussion and you know what i would consider the more conservative way to deal with seattle and hunter one that would preserve those as a doctor and is to think about how reitman would come out under that test reitman of course you had anti discrimination laws just like in hunter at the local level which were then repealed by state constitutional amendment and the political restructuring doctrine had not yet been invented yet and so what the court did is it relied on the california supreme court's finding that there was discriminatory animus in striking down those anti discrimination laws i think that if you view hunter and seattle similarly as as cases where if you repeal an discrimination law as opposed to one that requires equal treatment that's the narrow way to cabin those cases and ones that are a way that would allow those cases to survive yet to distinguish section twenty six you know one point that we haven't discussed much is the democratic process and it's important that i emphasize that you know obviously the use of race based on sex based preferences in college education is certainly one of the most hotly contested issues of our time and some believe that those preferences are necessary for campus diversity others think that they're not necessary and in fact that we would have a much better world if we moved past a discussion about race and instead based on race neutral criteria that you can ask to go back to the very first thing he said because i that we have is the actual statistics for the first full year after section twenty six what went into effect this is two thousand and eight and what we find is that the number of under represented minorities as part of the entering freshman class at michigan as a percentage change very little it went from about ten and three quarters percent to about ten and a quarter percent then it gets very difficult to track because following the u s census is lead in two thousand and ten the university of michigan stopped requiring students to check only a single box to demonstrate what their race or ethnicity was and move to a multiple check box system and justice sotomayor when you see in the amicus briefs that there's been a dramatic drop for example in african american students on campus at the university of michigan those numbers don't take into account that people who before were forced to check a single box now could be checking multiple boxes and if you fold in the multiple checks box students the number of under represented minorities on campus actually comes out higher now we don't know what those numbers are because you could have a student who might be white and asian and they would not be considered an under represented minority and they could be in there but we know that the numbers are a lot closer than when you just look at single california and a meek guy from california their attorney general has shown it in another state with a similar proposition as shown in the direct dramatic while the sticks in california across the seventeen campuses in the university of california system show that today the under represented minority percentage is better and sixteen out of the seventeen campuses it's not at berkeley they haven't gotten there yet but it's better on the rest and by going to race neutral criteria what they discovered was that under represented minority students have higher g p a that they take more technology engineering and math classes and they have a graduation rate that is twenty to twenty five percent higher than it was before california's proposition two o nine you can see similar effects in texas in their top ten percent program before it was modified and not only did it have those positive impacts but it actually increased minority performance at socially social economically disadvantaged high schools where the student said hey if i can only get into the top ten percent of my class i can be in the university of texas at austin and again you know we can all agree that diversity on campus is a goal that should be pursued what the california and texas experiences have demonstrated is that there are good positive reasons why the voters might want to try race neutral alternate why is it too big to have taken away not ok to have taken away the decision to  have from the local school boards the people on the ground but it's paid to take that power away from the people on the ground here at the board of regents who are also elected like the school board in seattle because as the general population has feelings about many things but the only decision that their teeth educational decision if they're taking away from the border regions is this one affirmative action everything else the within the order for each you put your finger on the fulcrum of respondents best argument that only race as a factor alone has been removed and their argument is exactly backwards because it's not michigan or section twenty six that single out race it's the equal protection clause itself because justice sotomayor if a student wants to lobby for an alumni preference or a cello preference and put it in the state constitution strict scrutiny is never applied to that effort but when you try to get a preference based on race or not based on race in the federal or the state constitution strict scrutiny is always applied and so it's the equal protection clause which is making a differentiation between race and everything else and that's why this court in crawford again decided the same day as seattle page five thirty eight recognized a distinction between state action that discriminates on the basis of race and state action that addresses in neutral fashion race related matters and section twenty six falls into that latter category you've been asked several questions that referred to the ending or termination of affirmative action that's not what's at issue here is that no i don't buy that you brought that up chief justice roberts because affirmative action means a lot more than simply the use of race or sex based preferences in university of michigan admissions  article one section twenty six only focuses on on this one aspect of university admissions now another important point to understand is that section twenty six is not all about university admissions this is actually a much broader law that applies not just to race and ethnicity but also to sex and to other factors and that affects not just universities but also public contracting and public employment this was a broad based law that was primarily motivated by the people of michigan's decision to move past the day when we're always focused on race exactly as a group are invited the states to do and you can you can see how that discussion gets mired when you look at some of the statistics that we've been talking about is someone who has multiple racial boxes check more or less diverse than someone who only has one box checked is someone who comes from outside the country safer from mexico something much more you're basically saying it because fisher and  we've always supplied strict scrutiny correct all right so it's a century and a last resort within some reason but what you're saying if all those others do everything else in the field of education except this well again it actually runs the other way because equal protection is what singles out race focused measures for strict scrutiny but what we're saying is under group or race preferences are barely permissible it cannot be unconstitutional for the people to choose not to use them anymore to accept this court's invitation ingrid or to move past the discussion about race and into a race neutral under what we're going to call that the narrow save hunter and seattle something like that would be unconstitutional because it removes and i discrimination provision and moves it to a higher level of government now one of the problems with keeping that doctrine is that it could also work the opposite way you know pretend that the political climate in michigan was turned on its head and the universities had agreed that they were no longer going to use race or sex in admissions and then it was the state electorate either in the legislature or in the constitution which imposed a group or plan on everyone well under hunter in seattle that would have to go because that removes and i discrimination provision and moves it to the higher level and so that would be one reason why you might want to take the washington d davis approach and consider whether there's discriminatory and in this based on race but you know in either of those cases i think you can either pare down the doctrine or get rid of it entirely and distinguish our case from it but the one point that i want to leave you with today is that the core of respondents arguments that somehow a racial classification can be any law that has a racial focus cannot be the right test no matter what that portion of seattle in hunter has to go because equal protection is about protecting individua roles not about protecting laws and even nondiscriminatory race neutral laws that have a racial focus would fall into their racial focus test the hypothetical we've given our briefs on that besides a state equal protection clause would be the federal for housing act because it references race it has a racial focus in the words of seattle and hunter and it has the ability of preventing anyone from lobbying for preferences based on their race or sex at lower levels of the government either state or local so under their theory the federal fair housing act would have to be applied under strict scrutiny and their only response to that in the brief is that while the supremacy clause takes care of that problem and we all know supremacy doesn't kick in until you first determine that the federal law itself is constitutional and it wouldn't be under their theory so what we're asking you to do is eliminate that portion of hunter and seattle that suggest that it was racial deprived from a different view of the equal protection clause that means fix any was originally put forward and a protection for minority protection for the minority so you do under the accounting product the you do focus on race and you ask is the minority being a disadvantage if that were the view then i suppose we would not be looking at this well the criterion is race to thoughts on that justice ginsburg first under group or this court made crystal clear that a greater plan is not about which minority group is being advantage or disadvantage it's supposed to benefit the campus as a whole and to the extent the claim is that preferences benefit certain classes of minorities and not others you know for example that benefits african americans and latinos but not asians even though they're both discrete and insular under represented groups that fails under greer it can only be something that benefits everybody but more fundamentally going back to your question about the origin of the doctrine i think it's really important to understand why we have hunter because hunter remember was decided before washington d davis and when you look at the face of the  in akron ohio in hunter there's nothing in there that would trigger strict scrutiny and so this court was searching for another way to strike down a law that removed an anti discrimination provision and made it more difficult to reenact at the higher level of the political process and needed something to fix that and our point is that you can either construe it to do exactly that that only anti discrimination laws being struck down a move to a higher level can satisfy a political restructuring doctrine or you can look at it differently you can say now that we've got washington d davis and we all know what the intent was in akron that that is a simpler way to address this problem and we really don't need the political restructuring doctrine at all anymore but the reason why we had the doctrine in hunter is because know it was not but it wasn't a finding it was actually more than that it was at the summary judgment stage the district court correctly concluded there wasn't even a question of disputed material fact as to whether intent was the primary motivation of the electorate unless there a rosenbaum mr chief justice and may please the court begin justice kennedy with the questions you raise and then come to the question that chief justice roberts race to begin justice kennedy there's no way to distinguish the seattle case from this case nor the hunter case both those cases have to be overruled here's why the seattle case is is identical to this case both issue both cases involve constitutionally permissible plans which had as their objective of obtaining diversity on campuses seattle with a k through twelve case this case is a higher education case but in both instances the objective was to obtain diversity no constitutional mandate to relieve past discrimination rather in fact is the court said seattle tacoma and watch go were attempting to deal with the fact of segregation it's not an accurate description of seattle i thought that in seattle before the school board adopted the busing plan and this is the city was threatened with lawsuits by the department of justice by the federal government and by private plaintiffs claiming that the previous  facto segregation moreover the question you are going to standards are to that question as to seattle itself is it not the case that they were threatened with litigation yes but there's been no finding justice alito of this you're a citizen a correct that the district court found that there was dangerous agreed is not correct there wouldn't there was there was no finding whatsoever that there had been did you're a segregation and that there was a constitutional imperative to correct that desegregation it was absolutely identical situation and regarding the accountability your honor is correct that in seattle what we were dealing with was an elected school board and here is the michigan brief says is that when state brief says as the court specifically found it ages three twenty six eight and three twenty seven a of the record this is a political process in which the region to elected have at all times maintain plenary authority over the admissions process itself and that there are two things number one is the delegated to the faculty and number two there are elections they're elected only staggered terms at that there's no question that that's correct your honor but the the ordinary process itself is a politically accountable process of what the district court found when it looked at how the system works and in what what the board delegated to the various universities the authority to develop their own admissions programs couldn't i'm sorry i'm sorry they did and then after several years they decided you know we don't like the way it's working they're adopting too many racial preference programs we're going to revoke the delegation absolutely fine why is that any any different because the difference is that in the seattle case in this case and in the hunter case what's going on is a change from the ordinary political process which you're on a perfectly described they can change it today they can go to a affirmative action plan today repeal it tomorrow also if that were a provision in the michigan constitution that says the board of reg is authorized to enact these these programs in other words delegated from the people in the constitution to the board and then the people change the delegation by saying no it's no longer we're no longer going to leave that  up to the board we're going to make the decision ourselves in the constitution how is any different is different your honor because of the racial nature of the decision under their theory under their theory the people of the state of a state could amend their constitution it in the legislature two rooms one for racial matters one for all other sorts of matter and say to any entrant who once to enter that first room you may do so but first you have to pay an exorbitant cover charge and then you have to mount multiple stair climb flights of stairs just to begin the process of an acting constitutionally permissible legislation or think about it in a desegregation case a student comes in a stew students come into the admissions committee one says and the admissions committee says we have one question for you one question for you since you're here to talk about a legitimate a legitimate factor in pursuit of diversity here's the question do you want to talk about your race your race in the context of other factors and if the answer is yes that student is shown the door togo raise between five and fifteen million dollars repeal prop two and then you can come back to make make the case whereas the students that know i've just got another legitimate factor course there are the state constitution itself could be altered so that a different committee or a different set of individuals could could make the decision if they don't like the way the regions are doing it or they could do it the old fashioned way the way that the political c system works which is to say we are going to work at these universities that's how affirmative action involving race happen in the first place that's a pages two seventy two seventy one a and two eighty two eighty two ninety three eight they worked for years t whole purpose of strict scrutiny was to say that if you want to talk about race you have a much higher hurdle to climb and if you want to talk about something else now you can argue that strict scrutiny should only apply to minorities and not to students who are not minorities but i thought the court decided that a long time ago exhaust don't know why that's a hard question that you essentially ask about the student says i want to talk about race what if it's a white student comes on and says i want to talk about race i'm white and therefore you should  give me preference the state can't say no we don't want to hear that the state can say we don't want to hear that whether comes from a white person a black person a member if in fact they are not doing on a race specific basis the you're exactly right of course about strict scrutiny and the programs in this case in t v evilly programs in this case that are affected are those that have passed and i don't understand your answer then if the student one student comes in and says i want to talk about how well i play the cello all right we'll listen to that i want to come in and talk about why i as a white person should get a preference you have to listen to that because you're listening to the to the talk about the cello to you do your honor when the program has passed the strict scrutiny test that we're talking about and that's the only sort of program that is that issue in this case of course you're correct if it is a grads type program if it's unconstitutional if it's a quota system you don't have to listen to anybody talk about race but we are only dealing ok under who's got the a forty here that if the legislature can take it away that's not a problem in a situation where that's part of the ordinary but then the voters can't take it away at what point is that the your objection takes  people of the state have multiple options available to them if they don't like the way the universities are operating but the one option they don't is to treat racial matters different from all other matters the example that you gave to have applies particular concern that this court has shown with respect to the political process that the political process itself not become outcome determinative that the political process itself be a place where we can enter these discussions but not created in a that i'm not explaining it clearly the first the when the faculty makes the decision justice kennedy that's part of the ordinary political process nobody's allowed to win all the time no one has to win all the time no one has to lose all the time whatever it is it is that's the ordinary political process that's how we use the political process the problem with with mounting a a racial classification within the constitution in itself is that and that takes the ordinary political process to the extraordinary political process sadly you could say that the whole point of something like the equal protection clause is to take race off the table is it unreasonable for the state to say look race is a lightning  rod we've been told we can have affirmative action programs that do not take race into account socioeconomic diversity elimination of alumni preferences all of these things and it is very expensive whenever we have a racial classification where immediately sued so why don't we say we want you to do the everything you can without having racial preferences now if you lived litigation determines that we're required to have racial preferences this statute has an exception and allows first starting out we want to take race off the table and try to achieve diversity without racial preferences the problem your honor as this court stated as recently as last term in the fisher case is that under the equal protection clause race is not all the way off the table and the problem with proposal two is that the substance and the message that it communicates is that because of the separate and equal political track that  created with respect to the extraordinary steps that have to be taken the message is that even where race is being utilized as one of many factors in a constitutionally permissible way the message that has been communicated is violate the rule that you're proposing i mean i'm a minority and i want laws that favor my minority not just in the university everywhere my goodness i can't have that food a normal legislative process i have to get a constitutional amendment to do it right that is correct your honor and will so i guess i guess that on this subject of equal treatment of the races you we  a limb in a racism just at the at the legislative level can't we your honor the the underlying basis of the entire strict scrutiny doctrine in the fourteenth amendment is to preclude government preclude the legislative and executive branch from making those determinations as absolute determinations the fourteenth amendment sets the standards in their criteria by which when we measure that of course you're correct that's what the fourteenth amendment  sets what the rules are in terms of how race is utilized but what the group can't change those rules by normal legislation that is correct as well and if you're a minority that wants favored treatment you're just gonna look you have to use the ordinary political process and that's all we're saying with the constitutional amendment is not the ordinary political process but the concept but the fact that it's a state constitutional amendment underscores my argument which is that that in order for the for and the minority or any individual and white minority whatever that whatever the individual is to say i want the same we book i want the same playing field the problem with proposal two is that it creates two playing field if proposed up to had been in the michigan constitution before any affirmative action program was adopted with the result being the same it would your honor because because it would be building in this explicitly facial racial classification into the state constitution the problem or the sep unequal systems that are being used to deal with race and separate and unequal under the fourteenth amendment shouldn't come within ten feet of race not a racial classification you should not refer to it that it is a rate it's the ku big racial classification your honor every for different treatment my goodness this was born just this this campaign started three days after group stop the author said the purpose of it was to get rid of racial preferences if that's how you using racial classification i thought it but you know it's directed at blacks or no or asians or no you in that sense the fourteenth amendment itself is a racial class well it's a standard in that sense but the fourteenth amendment itself is a racial class i don't i don't agree with that you are because i'm measuring  classification by the fourteenth amendment and that comes back to justice ginsburg's argument his argument his revisionist history of hunter his what it was about motive but your honor that had nothing to do with the problem in this case when the court looked at  a rational basis test and that has nothing to do with the racial classification the definition i'm using justice scalia is this court's definition of a racial classification for which all sorts trigger strict scrutiny thank you counsel driver mr chief justice and may it please the court we ask this court to uphold the sixth circuit decision to reaffirm the doctrine that's expressed in hunter seattle and to bring the fourteenth amendment back to its original purpose and meaning which is to protect minority rights against a white majority which did not occur in this case my goodness i thought we feel we've held at the fourteenth amendment protects all races i mean that was the argument in the early years of the protected only only only the blacks but i thought we rejected that you say now that  we have to proceed as though its purpose is not to protect whites not only to protect minorities i think it is it's a measure that's an anti discrimination measure right and it's a measure in which the groups who discriminate against against whites that's ok i think that you do you have any case that propounds not view of the fourteenth amendment that it protects only minorities any case no case of yours some people think that there is a difference between the plus in the minus so judges differ on that point some agree sort of with you and some agree sort of not all right let's think of those who permitted affirmative action where it was to overcome the effects of past discrimination but probably not otherwise now that's what i want to know are there areas other than education were affirmative action would not be forbidden to achieve a goal other than overcoming the effects if you got the question and as an answer come to mind i think that affirmative action programs could could be permissible  under employment for instance ok so there are a set if there are a set with what i would i'd like you to explain if you can take a minute is think of how a city is set up there are a vast number of the administrators there are a vast number of programs it could be an administrator somewhere says he'd like to give a preference maybe for good reason but then the city council votes no they because there are other ways of doing it by you know first come first served or or some other criteria that doesn't use race or all of those unlawful everyone do you have to leave it up to the no matter what the subject matter what the to draw a line somewhere is there a line that you could draw that would take your case on the right side from your point of view but would say we're not giving power to every administrator in the city to decide on his own whether to use racial preferences without possibility of a higher up veto i think i don't think you want to say but maybe you do know i think these are very fact based determinations and so somebody could make a decision that they wanted to use what you're calling racial preferences and that could mean a range of things and that could be subject to a veto higher up yeah i agree with you so what's the long line is there any line that you can say look here we were trying to be very helpful and all of a sudden they put this thing on the ballot you can't even get it through ok that's your basic point but but if you think of you have to write something that something has tremendous effect all over the place so what kind of line is there in your opinion i think hunter seattle provides a line i think it says that if you have a law that has a racial focus and that why are part of proving that it has a racial focus is that it takes a benefit that in n to minorities and it removes that benefit and it restructures the political process and places a special burden on minorities to re ascertain that about admissions criteria across the board is basically delegated to the faculty all right and the faculty had some sort of affirmative action plan and now that it is over ruled in favor of a colorblind approach at various levels going up the ladder so maybe it's over woold by the the dean of by the dean maybe it's overworld by the president of the university maybe it's over will by the regents maybe state laws allow it so it's over by an executive department of the state maybe it's overruled by the legislature through ordinary legislation maybe it's over with through a constitutional amendment at what point does the political restructuring doctrine kick  i think in this case the difference between what other groups can do in order to get preferential treatment for their sons and daughters and what racial minorities are subject to the level of distinction goes from the faculty to the dating from the dean to the president cetera et cetera where those the supply i think it depends on where it is that minorities face a heavier and because the normal political process imposes burdens on different groups i thought the line was very simple which is if the normal academic decisionmaking is in the dean the faculty at whatever level as long as the normal right to control is being exercise then that person could change that decision so if they delegate most admissions decisions as i understand from the record to the faculty but they still regularly besides race veto some of those decisions and race is now one of them then the board of regents can do that normally so could the president if that's the way it's normally done it's when the process is political processes change specifically and only for race as a constitutional amendment here was intended to do that the political university of michigan regents decided tomorrow to eliminate affirmative action programs and there was no prop two they have to only go right to do that they are the decision making body and minorities they have the authority but they left that to the university officials i think if they have the plenary authority to do that yeah i think that that again if they wanted to eliminate affirmative action programs and they that plenary authority and it was guaranteed by the michigan state constitution and it had existed for a hundred fifty years and they chose to enter this area i don't know how that's how that is consistent with justice  authority in or in in a way that is racially focused and creates a political process that this sense that it's disadvantages to avoid saying instead of political process and don't let me put words in your mouth i think what you hear you say we're we're the authority was divided in a certain way and that's true under the constitution of the state so the state government lacks the power and then you have to take the power from the people and change the constitution and when you do that in respect to a benefit then in respect of  benefits washington you know seattle and hunter kicking so we're not dealing with past discrimination this is this we're talking about in terms of affirmative action are constitutionally permissible programs that were shown to this court to be the only way to achieve racial diversity and integration at the university of michigan and whether you know whether you explain that by looking at the reality of the inequality in education for black and white michigan or or whatever it is that you come up with that requires that the university has shown that this is the only way to achieve diversity in which racial diversity is a part of is a part of the quotient and so to take away that right from the university and  the regents and i just want to go back to one of the questions that was answered if you look at the law schools the medical schools the professional schools now in the state of michigan there's been a  under represented minority enroll meant in those schools we are going back to the resegregation of those schools because of the elimination of affirmative statement to what extent does your argument depend i think both hunter in seattle speak in these terms that the policies that are more difficult to enact are beneficial for the minority group what extent does your argument depend upon the assumption that the programs that you say are now more difficult to enact are beneficial to the minority group i think it's an important component part because i think it's it's in the benefit to the minority group that it's especially important well why don't you let a call process be on a level field right one if the question of whether it's a benefit to the minority group is more open to debate whether it's through the mismatch theory that  taylor and sander i guess have adopted or other theories do we have to assume in your in your favor that these definitely are beneficial to particular minority groups that certainly the minority voters of michigan belie them to be because ninety percent of black voters in michigan voted against prop two and i think that that's a clear indication of the popularity of these programs and the perceived benefit of them there's a difference there may be a difference between popularity and benefit in other words you want us to assume that the programs are beneficial to minority group yes and they are beneficial to minority groups they may they may serve to provide benefits for the population beyond minority groups but they are benefit if a you're opponent says it was he says the minority students who have taken tougher  courses they have been better qualified to be admitted and all sorts of other point if it's really it's certainly a debatable question it's a debatable question in another forum in a different case and in fact i think that cas the broader case this case isn't about isn't just about whether or not affirmative action benefits minorities it's also the restructuring of the political process and the special burden that's placed on minorities it's not if you want to go back to debating the you know whether champion the rancher then your answer you're the chief was it does depend on whether it benefits minorities now you're saying it doesn't depend on whether it benefits minorities at all it's just whether it it places a a greater burden on minorities to change it you know is it one area i think it's a two part test i think the first the first thing that you look at is is there are racial focus to the law and is the benefit that it's been taken away something that in nurse to minorities and i think the second part of the test and that's why i think seattle hunter is such a narrow doctrine is whether or there also has been a restructuring of the political process and a special burden placed on minorities it  requires both thank you counsel and mr bush you have four minutes remaining thank you mr chief justice i'm going to start with a sentence from crawford decided the same day as seattle where this court defined what he racial classification is a race or class of classification either says or implies that persons are to be treated differently on account of race it doesn't say anything about laws with or without a racial focus and we think that's the test that ultimately should come out of the decision in this case now my friends on the other side disagree with that because if that's the test section twenty six is constitutional and so they they draw this false dichotomy between laws that involve race and laws that don't involve race will put them into separate chambers of the legislature and charge a fee if you want to talk about about race and we know that can't be right because of chief justice roberts your observation that the whole point of equal protection i when the state's allocation of power places unusual burdens on the ability of racial groups to enact legislation designed to overcome the special condition of the governmental that notion that you can't put hurdles in the way of a disadvantage minority justice ginsburg there's two problems with that first that's where the respondents theory most closely nox up against or because you're right under seattle in hunter you've got to have a policy designed for the purpose of primarily benefiting the minority but if that's the policy it violates cruder which is supposed to benefit everyone but the bigger problem is if you treat but when you take away a tool for diversity that's what seattle is saying is true all right but the bigger people take the tool away simply because it means race as a factor simply because you're changing the playing field but justice sotomayor the biggest problem with respondents test with applying the literal language of seattle is that as i said the federal for housing act the equal credit act a state equal protection law that mentions race all of these things fall in the category of laws dealing with race some are discriminatory although in this case both involve constitutional seattle in this case both involve constitutional amendment so why can't the law the law be drawn the line be drawn and if you change the allocation of power in one of these less substantial ways that's one thing but when you require a constitutional amendment that's really big deal because that would still invalidate the michigan equal protection clause which has a racial focus that says you cannot discriminate i mean there's lots of language in seattle right here you come in right now suppose you take that and say all right it was meant in contacts but the context includes constitutional amendments because with the constitutional amendment you restructuring now you would lose on that theory but there would be a limitation on the extent to which the people have the right to move powers around just retire that limitation has to be not only that but also that you're repealing an anti discrimination law not an equal treatment law or again otherwise the state equal protection clause has to fall so to the extent that i'm right that's a way that you can narrow hunter in seattle and section twenty six has to survive if i'm wrong about that then respectfully seattle and hunter should be over ruled either way it does not violate equal protection to require equal treatment thank you thank you counsel the case is submitted