Supreme Court Upholds Bans on Racial Preferences in College Admissions

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Students protest in support of affirmative action outside the Supreme Court last fall, when the justices heard arguments on a challenge to a Michigan ballot measure prohibiting racial preferences in college admissions. On Tuesday the court ruled that the ballot measure passed constitutional muster.
April 22, 2014

The U.S. Supreme Court has upheld voter-passed bans on racial preferences in public-college admissions in a case involving a challenge to Michigan’s 2006 adoption of such a measure.

In a 6-to-2 decision handed down on Tuesday, the court’s majority rejected the argument that a voter-approved amendment to Michigan’s Constitution discriminated against that state’s minority residents by precluding them from lobbying for the same admissions advantages routinely sought by other constituencies, such as university alumni.

A majority of the justices not only overturned a decision by the U.S. Court of Appeals for the Sixth Circuit, which had struck down Michigan’s measure, but also made clear that they would reject any similarly argued challenge to the bans on race-conscious admissions adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington.

The court’s controlling opinion, written by Justice Anthony M. Kennedy, said the Sixth Circuit’s decision had called into question "other long-settled rulings on similar state policies," including the U.S. Court of Appeals for the Ninth Circuit’s upholding of a ban on race-conscious admissions passed by California voters in 1996. Were the Supreme Court to affirm the Sixth Circuit’s decision, Justice Kennedy wrote, it "in essence would announce a finding that the past 15 years of state public debate on this issue have been improper."

In overturning the Sixth Circuit’s ruling, Justice Kennedy was joined by the four other members of the high court’s conservative wing—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas—and by Justice Stephen G. Breyer, who is generally considered a liberal on matters related to race.

Justice Sonia M. Sotomayor wrote a dissent, signed by Justice Ruth Bader Ginsburg, in which she argued that the amendment to Michigan’s Constitution had created "two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the state’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else."

Justice Elena Kagan recused herself from hearing the case, which she had dealt with in her former capacity as U.S. solicitor general. The justices’ leanings in the case, Schuette v. Coalition to Defend Affirmative Action (No. 12-682), had been fairly evident in when they heard arguments last fall, and only Justices Ginsburg and Sotomayor voiced sharp criticisms of the Michigan measure.

Deciding Political Advantage

The Supreme Court’s decision on Tuesday has no bearing on the general legality of race-conscious admissions policies, which the justices most recently considered last year in a case involving the University of Texas at Austin. In its Texas ruling, the court’s majority left intact the use of race-conscious admissions to promote diversity, but held that the U.S. Court of Appeals for the Fifth Circuit had failed to apply strict scrutiny to the policy at issue and ordered the circuit court to evaluate the policy again.

In the ruling on Schuette, named for the Michigan attorney general who defended the amendment, Bill Schuette, Justice Kennedy wrote: "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it." His opinion concluded: "There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."

Much of the debate between the justices focused on the applicability of the court’s precedents in cases involving laws that appeared to put members of minority groups at a political disadvantage. In its 8-to-7 decision striking down Michigan’s ban, the Sixth Circuit majority had cited a 1969 Supreme Court ruling, in Hunter v. Erickson, that overturned an Akron, Ohio, ballot initiative requiring voter approval of any city ordinance regulating real-estate transactions based on race. The Sixth Circuit also had cited a 1982 ruling, in Washington v. Seattle School District No. 1, in which the court struck down a state ballot measure that prohibited school districts from voluntarily adopting busing policies to promote school desegregation.

The controlling opinion handed down on Tuesday held that the Michigan case differs from the cited precedents in that the measure at issue did not seek to remedy any specific acts of discrimination against minority members.

Justice Kennedy’s opinion, signed by Justices Alito and Roberts, also expressed reservations about the Seattle precedent’s assumption that members of certain minority groups have distinct political interests. The task of trying to determine where their interests lie risks "the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage," potentially giving rise to new racial conflicts, the opinion said.

Justice Scalia argued in a concurring opinion, signed by Justice Thomas, that the court should have gone further and overruled the precedents cited by those challenging the Michigan ban.

In a separate concurring opinion, Justice Breyer rejected assertions by Michigan State University, the University of Michigan, and Wayne State University that their state’s ban on race-conscious admissions had reordered the political process to the detriment of minority members by stripping authority over admissions decisions from the universities’ elected boards.

Justice Breyer argued that the boards had already shut minority members and other citizens out of the process by delegating admissions decisions "to unelected university faculty members and administrators." The ban on race-conscious admissions adopted there in 2006, he wrote, "took decision-making authority away from these unelected actors and placed it in the hands of voters."

In dissent, Justice Sotomayor wrote: "We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups."

Protests Planned

The Supreme Court’s Schuette decision was denounced as "terrible" and "racist" by George B. Washington, a lawyer for one of the groups that had challenged the Michigan ban, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary.

Mr. Washington said in an interview that the decision "turns over to the states the right to decide what political rights blacks and Latinos have," and "will mean the resegregation of higher education" in states where such measures have passed. He predicted student protests over the decision, at the University of Michigan at Ann Arbor and elsewhere.

Molly Corbett Broad, president of the American Council on Education, issued a statement declaring her group’s disappointment with the Supreme Court’s ruling. She said: "All colleges and universities, in Michigan and every other state, should be able to seek to create the most challenging possible academic environment and produce students fully prepared to function in today’s society—and a diverse student body is critical to that pursuit."

The council had been joined by 48 other higher-education organizations in submitting a brief that urged the court to strike down Michigan's constitutional amendment, which, they said, "distorts the political process against racial and ethnic minority voters in Michigan, thereby violating the 14th Amendment to the United States Constitution."

On the other side of the issue, the decision was praised as "a victory for the voters of Michigan and for the issue of equality" by Jennifer Gratz, who successfully challenged the University of Michigan’s race-conscious undergraduate-admissions policy in a case decided by the Supreme Court in 2003. She later helped lead the campaign for that state’s ban on preferences.

Roger Clegg, president of the Center for Equal Opportunity, a group critical of affirmative action, called in a statement for new efforts to abolish race-conscious admissions policies. "Where ballot initiatives are not available," he said, "state legislatures should act; where state legislatures won’t act, then action should be taken at the local level."