Supreme Court Upholds Michigan’s Affirmative Action Ban

Adam Liptak, New York Times, April 22, 2014

The Supreme Court on Tuesday upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities, in a fractured decision that revealed deep divisions among the justices over what role the government should play in protecting racial and ethnic minorities.

The 6-to-2 ruling effectively endorsed similar measures in seven other states and may encourage additional measures banning the use of race in admissions. States that forbid affirmative action in admissions decisions, like Texas, Florida and California, as well as Michigan, have seen a significant drop in the enrollment of black and Hispanic students in their most selective colleges and universities.

In five opinions spanning more than 100 pages, the justices set out starkly conflicting views. The justices in the majority, with varying degrees of vehemence, said that policies affecting minorities that do not involve intentional discrimination should ordinarily be decided at the ballot box rather than in the courtroom.

But Justice Sonia Sotomayor, in the longest and most significant dissent of her career, said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.”

Justice Anthony M. Kennedy’s controlling opinion for three justices took pains to say that the decision was a modest one.

“This case is not about how the debate about racial preferences should be resolved,” he wrote, in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “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.”

His announcement of the decision from the bench was businesslike. Then Justice Sotomayor summarized her dissent, an unusual move signaling deep displeasure. She said the initiative put minorities to a burden not faced by other college applicants and so violated the Constitution’s equal protection clause.

“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent.

Justice Sotomayor seemed to mock one of Chief Justice Roberts’s most memorable lines. In a 2007 decision that limited the use of race in public school systems, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Sotomayor recast the line. “The way to stop discrimination on the basis of race,” she wrote, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

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In earlier cases, including one from June concerning the University of Texas, the court has said that race-conscious admissions policies can be constitutionally permissible in states that wish to use them. The new decision concerned the question of whether and how voters may prohibit affirmative action programs.

The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.

Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the state Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.

In 2012, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled by a vote of 8 to 7 that the initiative violated the federal Constitution’s equal protection clause. The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.

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