Michigan Affirmative Action Ban Upheld by U.S. High Court

Story by Bloomberg
Written by Greg Stohr and Sophia Pearson

The U.S. Supreme Court dealt a blow to affirmative action, upholding a voter-approved ban on racial preferences in admissions at Michigan's state-run universities in a decision that provides a blueprint for other states wishing to enact similar bars.

The justices, voting 6-2, today said racial preferences were a legitimate subject to be put before the state's voters. A federal appeals court had said Michigan unconstitutionally stripped racial minorities of their rights.

"Democracy does not presume that some subjects are either too divisive or too profound for public debate," Justice Anthony Kennedy wrote in the court's lead opinion.

The ruling has both symbolic and substantive significance. A decade ago, the University of Michigan won a Supreme Court decision that let institutions across the country continue to use race as an admissions factor. The survival of the voter-approved initiative means that ruling is nullified for the university that secured it.

Black enrollment is down about 30 percent at the undergraduate and law schools since the measure took effect, according to the university's figures. Michigan is one of 10 states where race-conscious admissions are barred at public institutions, by ballot initiative or other government action.

Proponents of affirmative action said the ruling today, while not focused on the merits of the practice, is a setback for racial equality.

‘Nail in Coffin'

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented from the ruling. Sotomayor, who took the unusual step of reading a summary of her dissent from the bench, wrote that the court was "permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan."

Chief Justice John Roberts has sought to steer the court toward a color-blind approach to the Constitution. Sotomayor wrote that Roberts's approach was "out of touch with reality."

Roberts responded that "it is not ‘out of touch with reality'" to conclude that racial preferences may "do more harm than good" by sowing doubt among beneficiaries about their own qualifications.

"This is another nail in the coffin of affirmative action," said Richard Kahlenberg, a senior fellow at the Century Foundation, a Washington-based public policy research organization, and a proponent of affirmative action based on income rather than race. "This moves us further in the direction of finding alternatives to racial preferences to promote diversity."

He added, "I think this was the right decision."

Socioeconomic Status

About a quarter of the U.S. population lives in states where racial preferences have been banned in public school admissions, including California, Washington, Nebraska and Arizona, Kahlenberg said. Many universities in these states are turning to students' socioeconomic status as a way of promoting diversity, he said.

Dennis Van Roekel, president of the National Education Association, which represents public school teachers and other employees, countered that the decision will make it harder to advocate for equal educational opportunity.

"Having spent 23 years in the classroom, I saw first-hand the important role diversity played in the classroom and how learning from people with different backgrounds and perspectives can benefit all students, our workforce and our country as a whole," Van Roekel said in a statement.

Political Restriction

Kennedy wrote for himself, Roberts and Justice Samuel Alito. His opinion distinguished, without overruling, decades-old Supreme Court decisions barring government actions that restructure the political process along racial lines. In a 1982 case, the court invalidated a Washington ballot initiative that had prohibited busing for purposes of desegregating schools.

"Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race," Kennedy wrote. He said that wasn't the case with the Michigan initiative.

Justices Antonin Scalia and Clarence Thomas wrote separately to say they would have gone further and overturned the political-restructuring rulings. Another member of the majority, Justice Stephen Breyer, wrote a separate opinion to say he would have ruled more narrowly than Kennedy.

Justice Kagan

Justice Elena Kagan didn't take part in the case. Although she didn't specify a reason, she was President Barack Obama's solicitor general when the administration had a chance to get involved in the litigation.

The justices in their last nine-month term overturned a core part of the Voting Rights Act, the law designed to protect minorities at the polls. The court also issued a compromise ruling that ordered tougher judicial scrutiny of university affirmative action programs.

White House Press Secretary Jay Carney said the Obama administration was reviewing today's ruling.

While Obama "opposes quotas," there are times when "considering race, along with other factors, can be appropriate in certain circumstances," Carney said.

Today's ruling involved different legal issues from those in past affirmative action disputes. Rather than deciding whether universities violate the rights of white students by using affirmative action programs, the court considered whether state bans on racial preferences amount to discrimination against minorities.

Unique Disadvantage

A federal appeals court said the Michigan measure put racial minorities at a unique disadvantage. The 8-7 decision said minorities are barred from asking universities for special preferences -- something athletes, band members and children of alumni could still do.

Proposal 2, as the initiative was known, bars preferences on the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law was the only part before the Supreme Court.

Proposal 2 was spearheaded by Jennifer Gratz, whose reverse-discrimination lawsuit against Michigan became one of the two 2003 Supreme Court cases. Michigan voters approved Proposal 2, a constitutional amendment, 58 percent to 42 percent.

The University of Michigan's policies already are consistent with Proposal 2, Rick Fitzgerald, a spokesman for the school in Ann Arbor, said in an e-mail.

Academically Excellent

"We remain committed to the goal of a diverse, academically excellent student body, and will continue to seek to achieve that goal in ways that comply with the law," he said.

The Supreme Court has grown more skeptical of affirmative action since upholding it in 2003. That's largely because of Justice Sandra Day O'Connor's 2006 retirement and the appointment of Alito to fill her seat.

Jon Greenbaum, chief counsel for the Lawyers' Committee for Civil Rights Under Law, a Washington-based nonprofit group, said Kennedy "is generally skeptical toward affirmative action but he hasn't gone as far as probably some of the other justices would like."

The ruling is a "step backward for racial inclusion," and although limited in its initial effect, may encourage other states to attempt similar ballot initiatives, Greenbaum said. "For now, it only applies in those states that have passed these types of referendums."

The case is Schuette v. Coalition to Defend, 12-682.