Supreme Court reverses decision that tossed out Michigan’s ban on racial preferences

Robert Barnes and William Branigin
The Washington Post
April 22, 2014


The Supreme Court on Tuesday upheld Michigan’s ban on the use of racial preferences in university admissions, reversing a lower court decision that had tossed out the prohibition.
By a 6 to 2 vote, the court concluded that neither the Constitution nor Supreme Court precedents provide authority for the courts to overturn Michigan laws that allow the voters to determine whether racial preferences may be considered in decisions such as school admissions.
Justice Anthony M. Kennedy wrote an opinion for a plurality in the case, joined by Justice Samuel A. Alito Jr. Chief Justice John G. Roberts Jr. filed a concurring opinion, and Justices Antonin Scalia and Stephen G. Breyer separately wrote opinions concurring in the judgment. Scalia’s was joined by Justice Clarence Thomas.
Justice Sonia Sotomayor dissented, joined by Justice Ruth Bader Ginsburg. Justice Elena Kagan did not take part in the decision.
An appeals court had said that a Michigan constitutional amendment banning the use of racial preferences in university admissions, approved by 58 percent of the state’s voters in 2006, had restructured the political process in a way that unfairly targeted minorities.
At issue at the Supreme Court was language that says state colleges and universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.”
The amendment was approved by voters after the Supreme Court, in another case from Michigan, in 2003 allowed the limited use of race as part of an “individualized, holistic review of each applicant’s file.”
But the U.S. Court of Appeals for the 6th Circuit, which narrowly tossed out the Michigan amendment, ruled that there was a difference between not using affirmative action and banning it in the state constitution. The latter violates the principle that minorities must be allowed to fully participate in creating laws and that “the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them,” Judge R. Guy Cole Jr. wrote.
His comparison was that while residents of Michigan’s Upper Peninsula may lobby decision-makers to grant preferences to their underrepresented students, minority groups would now have to change the constitution before even having a chance to advocate racial considerations because of the amendment.
The case is Schuette v. Coalition to Defend Affirmative Action. Only eight justices decided the case, because Kagan recused herself. As is customary, she gave no reason, but she may have worked on the issue while previously serving as the Obama administration’s solicitor general.
Last term, in a case challenging the University of Texas’s use of race in making some admission decisions, the court declined to revise its holding in a previous case. The justices sent the case back to a lower court for a closer look at whether the university had used all the tools at its disposal to increase racial diversity before resorting to considering race in admissions.
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