Last October, the Supreme Court heard oral argument in a case challenging a referendum that Michigan voters had overwhelmingly passed in 2006 which banned race based preferences at the state’s public universities. To a large degree the referendum was a response to the Supreme Court’s 2003 decision in Grutter v. Bollinger, which had largely upheld the race based admissions polices of the University of Michigan’s Law School. Almost immediately, various civil rights organizations filed suit contending that the law was unconstitutional and, in 2012, the Sixth Circuit Court of Appeals agreed with them in an opinion that quite literally divided the full court, finding that the referendum violated the Equal Protection Clause because of the manner in which it changed state law to make it harder for minorities to effect political change. As I noted at the time that the case was argued, these arguments seemed to be incredibly weak, at least as argued before the Court, and I predicted that the Court would up hold the referendum.
Today, in a decision that was as divided as cases dealing with Affirmative Action have always been since the days of Regents of the University of California v. Bakke, the Supreme Court upheld the referendum, although it’s unclear what impact the ruling will have on any future cases dealing with racial preferences in education and hiring:
WASHINGTON — The Supreme Court on Tuesday upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities.
“This case is not about how the debate about racial preferences should be resolved,” Justice Anthony M. Kennedy wrote in a controlling 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.”
Justice Sonia Sotomayor read an impassioned dissent from the bench. She said the initiative put minorities to a burden not faced by other applicants to college.
“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.
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.
Lyle Denniston analyzes the opinion, and notes that the Supreme Court has essentially decided that the fate of affirmative action programs is up to the voters as much as it up to the courts:
The decision in Schuette v. Coalition to Defend Affirmative Action upheld Michigan’s Proposal 2, approved by the state’s voters in 2006 by a margin of fifty-eight to forty-two percent. The measure told the state’s public colleges and universities that they could no longer “grant preferential treatment” on the basis of race in their admissions policies.
Justice Anthony M. Kennedy, in the opinion that controlled the outcome, insisted that the Court was saying nothing new on the constitutionality of public policies that take race into account. “This case,” he wrote, “is not about how the debate about racial preferences should be resolved. It is about who may resolve it….The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.”
He added: “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.”
A federal appeals court, the U.S. Court of Appeals for the Sixth Circuit, had struck down Michigan’s ballot measure, relying primarily upon the concept that it is unconstitutional for voters to change the way public policies are developed to make it more difficult to adopt or keep policies that protect racial minorities from discrimination.
That approach, known as the “political process theory,” is traced mainly to a 1982 Supreme Court ruling, Washington v. Seattle School District – a decision that overturned a Washington ballot measure barring the use of busing to achieve racial desegregation in the city’s public schools.
On Wednesday, the Court majority flatly rejected that theory, implicitly overruling that part of the 1982 ruling. The theory, Justice Kennedy wrote, was not essential to the result in that case, and was itself a form of encouraging an unhealthy tendency to group minority individuals together as if they commonly shared the same views on public policy.
“It cannot be entertained as a serious proposition,” the opinion said, “that all individuals of the same race think alike.” But, it said, that assumption would have to be the “beginning point” if a court were required to analyze what government policies racial minorities believe to be in their interest.
Pursuing such an inquiry, Kennedy said, would “impose a high risk of inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.” Moreover, he said, courts would have to determine “the policy realms in which groups — groups defined by race — have a political interest.”
That process would lead to “racial antagonisms and conflict,” according to the Kennedy analysis.
By contrast, the lead opinion said, voters can be trusted to decide the racial preferences issue at the polls. “Our constitutional system embraces…the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”
The race issue, Kennedy said, is not so sensitive that it cannot be made the topic of political conversation and submitted to a referendum of the voters.
The Kennedy opinion was supported in all of its reasoning only by Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. But it will serve as the controlling opinion because its result — upholding Proposal 2 — was supported also by Justices Antonin Scalia and Clarence Thomas.
Thomas and Scalia argued in their concurrence that the Court should have ruled that all race-based admissions policies are unconstitutional. This is a position that they have both taken in previous affirmative action cases before the Court, including the University of Texas case that the Court handed down last June. However, as Justice Kennedy made clear in his opinion, it wasn’t necessary for the Court to reach that issue in order to rule on the constitutionality of Proposal 2. All that they Court needed to determine was whether or not it was permissible for a majority of Michigan voters to decide that it would no longer be permissible for state-run colleges and universities to give preferential consideration to students based on race on the theory that this was somehow necessary because of past discrimination. The Court determined, as noted, that there was no equal protection violation here.
Notwithstanding the arguments of the opponents of the referendum and the dissent, it strikes me that the the Court reached the correct decision here. While there are certainly limits on how a majority can use the political process when it comes to the rights of the minority, the Equal Protection Clause has never stood for the proposition that the democratic process can be overridden by courts in every case where minority “rights” might be impacted. Furthermore, the Supreme Court has explicitly never held that there is such a thing as a “right” to race-based preferences except in instances where there has been direct evidence of discriminatory action taken against specific individuals. That wasn’t the case in Michigan, nor was it the case in Texas. Indeed, it’s unlikely that such discrimination would take place in today’s environment to begin with. Additionally, even if one could agree that Affirmative Action was a good idea at some point, there’s no rational reason why it should be permitted to continue indefinitely. The voters strike me as a being just as able to determine when that point has been reached as unelected judges or educational administrators with political agendas that may not be in the best interests of the voters they are supposed to be worked for.
While this case is not likely to have any impact on future Affirmative Action litigation, it’s not hard to see where the debate over race-based preferences goes from here. The Supreme Court has given open space for other states to enact legislation similar to Proposal 2, and it’s not going to take very long for states to walk through that door. States that are controlled by Republican legislatures and Governors will likely be the first to act, of course, but we’ll also probably see moves for referendums in other states where getting such a measure through the legislature would not be so easy. The Supreme Court has been reluctant to deal with Affirmative Action in education ever since Bakke was handed down in 1979, by handing this victory to Michigan they very well may have set in motion a process that will largely resolve the issue without them having to act.
Here’s the opinion:
Schuette v. Coalition to Defend Affirmative Action by Doug Mataconis
