Affirmative Action in the Supreme Court: Were Racial Issues Ignored?

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On April 22, the U.S. Supreme Court upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities. “Justice [Anthony] Kennedy, joined by the Chief Justice [John Roberts] and Justice [Samuel] Alito, concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” read the Supreme opinion brief filed Tuesday. In addition to Kennedy, Roberts, and Alito, three other justices voted with the majority, while Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg voted against and Justice Elena Kagan recused herself, likely because she previously worked on the case as United States solicitor general.

The case — Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action — dates back to 2006, when 58 percent of Michigan voters approved Proposal 2. That measure allowed lawmakers to amend the state Constitution to prohibit both discrimination and preferential treatment in public education, government contracting, and public employment. This Michigan initiative was made possible by the Supreme Court’s 2003 decision in Grutter v. Bollinger that upheld that race could be one factor, among many, used by law school admission officials to ensure educational diversity. But after the ballot measure was passed, groups favoring affirmative action sued to block the portion of the law concerning higher education. After the United States Court of Appeals for the Sixth Circuit in Cincinnati ruled, in 2012 by a vote of 8 to 7, that Proposal 2 violated the federal Constitution’s equal protection clause, the case proceeded to the highest U.S. court, which made a very different argument.

“This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” stated Justice Kennedy, writing for the majority. “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 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.”