The Supreme Court dealt a major blow to affirmative action policies across the country Tuesday, upholding a Michigan voter initiative that banned factoring race into the state’s public university admissions programs.
The justices ruled 6-2 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. A lower federal court struck down the ban last year.
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 decision — 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.
“This case is not about how the debate about racial preferences should be resolved,” Kennedy wrote in his opinion. “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.”
Justice Ruth Bader Ginsburg joined Justice Sonia Sotomayor in her dissent, arguing the decision infringed on the rights of minorities. Justice Elena Kagan did not take part in the case, likely because she weighed in on the issue earlier while she served in the Justice Department.
“The Constitution does not protect racial minorities from political defeat,” Sotomayor said in her dissent, read before the courtroom Tuesday. “But neither does it give the majority free rein to erect selective barriers against racial minorities.”
“Today’s decision eviscerates an important strand of our equal protection jurisprudence,” Sotomayor concluded. “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.”
Michigan is where the Supreme Court decided in 2003 that colleges and universities could promote greater diversity on campuses by taking race into account during the admissions process. Just three years later, 58% of voters in Michigan approved Proposal Two, changing the state Constitution to prohibit racial considerations. In 2012, the 6th U.S. Circuit Court of Appeals ruled that the initiative violated the Constitution’s equal clause protection and that altering the political process was discriminatory in disfavoring minorities who seek change.
Even before Proposal Two was enacted, African-Americans were already underrepresented in the state’s major schools. From 2006 to 2012, African-American enrollment decreased by 33% at the University of Michigan, Ann Arbor. During the first decade of the 2000s, black students accounted for an average of 6.9% of bachelor’s degree recipients at the school; by 2012, that dropped to just 4.4%. Meanwhile, overall enrollment grew by 10%. “This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students,” Mark Rosenbaum, the American Civil Liberties Union attorney who argued the case before the Supreme Court last fall, said in a statement. “Today, the Supreme Court said they are not.” The initiative mirrors a similar measure approved by California voters in 1997, where Sotomayor noted was “especially harmful to black students.” Six other states have banned affirmative action, including Arizona, Florida, Nebraska, New Hampshire, Oklahoma and Washington. The ruling Tuesday comes just under a year after the high court punted a major decision on affirmative action. In a 7-1 vote last June, the justices sent a case back to the lower courts to review the University of Texas’ race-based admission policy.
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