Students protest in support of affirmative action, outside the Supreme Court during the hearing of "Schuette v. Coalition to Defend Affirmative Action" on October 15, 2013 in Washington, DC.
Andrew Burton/getty

Supreme Court upholds Michigan’s affirmative action ban

The ruling on affirmative action in Michigan did not come as too great a surprise, but it’s nevertheless one of the year’s big cases at the U.S. Supreme Court.
The Supreme Court upheld a Michigan voter initiative Tuesday banning racial preferences in admissions to the state’s public universities.
 
The justices ruled 6-2 Tuesday that the affirmative action ban, approved by voters in 2006, allowed Michigan the right to prohibit public colleges and universities from using race, ethnicity or gender as a factor for admissions.
 
In his majority opinion, Justice Anthony Kennedy said the court did not have the authority to throw out the election results of the voter-approved initiative. Those joining the majority opinion – Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Antonin Scalia and Clarence Thomas – stressed, however, that the ruling did not address the constitutionality of affirmative action itself.
And that distinction is extremely important when evaluating the scope of the ruling.
 
“This case is not about how the debate about racial preferences should be resolved,” Kennedy wrote for the majority. “It is about who may resolve it. 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.”
 
In other words, affirmative action in college admissions hasn’t been banned. Indeed, the role of considering race in admissions policies remains in place – except in states that choose to prohibit affirmative action policies.
 
The ruling will be especially relevant in states that have chosen to ban affirmative action – msnbc’s Amanda Sakuma noted the policies have been curtailed in Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma, and the state of Washington – while also signaling to other states that they can now do the same without fear of judicial intervention.
 
Justice Sonia Sotomayor issued a stinging dissent.
 
The entirety of the ruling is online here (pdf), but this excerpt helps capture the extent to which she disagreed with the majority.
“The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.
 
“In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected university boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational decisions. […]
 
“Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.”
Sotomayor, who read her dissent aloud this morning, was joined by Justice Ruth Bader Ginsburg.
 
Justice Elena Kagan, who worked on this case during her tenure as solicitor general, recused herself from the proceedings.
 

Affirmative Action, Michigan and Supreme Court

Supreme Court upholds Michigan's affirmative action ban