The U.S. Supreme Court today rejected a challenge to the measure approved by Michigan voters in 2006 to bar public colleges and universities from considering race in admissions.
The ruling leaves in place not only the Michigan measure, but also similar ones in California, Washington State and elsewhere that have made it more difficult for public colleges to recruit and admit black and Latino students. While the measures survived legal challenges when they were approved by state voters, an unexpected challenge to the Michigan measure had given new hope to those seeking to overturn the state bans.
The justices upholding the Michigan measure had a variety of reasons (some conflicting) for doing so. The plurality opinion -- by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justice Samuel Alito -- stressed that the court was not ruling on the constitutionality of the consideration of race in admissions, only on the right of states not to exercise their right to have such consideration at their public colleges.
"This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged," the opinion says. "Rather, the question concerns whether, and in what manner, voters in the states may choose to prohibit the consideration of such racial preferences. Where states have prohibited race-conscious admissions policies, universities have responded by experimenting with a wide variety of alternative approaches. The decision by Michigan voters reflects the ongoing national dialogue about such practices."
Among the other justices backing the outcome, two -- Justices Antonin Scalia and Clarence Thomas -- wrote an opinion saying that the key question was whether the Michigan measure was discriminatory. And they said it was not. "The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not," they said.
Justice Stephen Breyer also backed the outcome of upholding the Michigan measure, but for different reasons.
Justice Sonia Sotomayor wrote a dissent -- joined by Justice Ruth Bader Ginsburg -- that said that the Michigan measure violated the rights of minority individuals in the state. "We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do," the dissent says. "This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights."
Justice Elena Kagan recused herself from the case.
The U.S. Court of Appeals for the Sixth Circuit -- in two rulings, one by a 2-1 vote and one by an 8-7 vote -- found that Proposition 2 (the measure passed by Michigan voters) was unconstitutional. But those rulings have been stayed, pending the Supreme Court's ruling, which now has reversed them.
Today's Supreme Court ruling does not invalidate last year's ruling that, under certain circumstances, it is constitutional for public colleges and universities to consider race in admissions. That decision -- Fisher v. University of Texas at Austin -- found that there is a right to consider race, but not an obligation to do so. Today's decision -- in Schuette v. Coalition to Defend Affirmative Action -- says states can reject the use of that right.
Read more at Inside Higher Ed: http://www.insidehighered.com/news/2014/04/22/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions#sthash.iBdTsBPQ.dpbs