In 1997, the Ninth Circuit upheld the constitutionality of Proposition 209, a ballot initiative that the citizens of California passed to ban affirmative action programs in the state. However, over a decade later in 2011, the Sixth Circuit reached the opposite conclusion regarding Proposal 2, a nearly identical ballot initiative passed by the voters of Michigan. At the core of this circuit split is the applicability of a rarely invoked Equal Protection test: the Hunter/Seattle Doctrine.
Controversy stems from the incongruity of this doctrine with the Rehnquist Court’s move towards a less deferential stance regarding affirmative action in key Equal Protection cases decided in the 1990s. In addition, the doctrine has never been invoked by the Supreme Court since its Washington v. Seattle School District No. 1 decision in 1982, furthering questioning its modern relevance.
This Comment argues that the Hunter/Seattle Doctrine emerged from both a strong legal and policy basis and that it deserves to be afforded a certain degree of respect. However, the doctrine may be refined to better harmonize with more recent Supreme Court jurisprudence and to better judge the ballot initiative affirmative action bans that themselves revived the doctrine from obscurity. This Comment offers several possible modifications to the doctrine to ensure that it is an effective tool in protecting the equal protection rights of minorities in the future.