The Supreme Court on Tuesday accorded voters more leeway to challenge affirmative action as justices upheld a Michigan measure that bans preferential treatment in college admissions based on race or ethnicity.
In a fractured decision, the court said it lacked the authority to interfere with the political decision made by Michigan voters in 2006 when they amended their state’s constitution.
“Courts may not dis-empower the voters from choosing which path to follow,” Justice Anthony Kennedy wrote. “The Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power.”
The court’s ruling effectively gives the green light to voters in other states who want to ban affirmative action. It does not force such a ban, though, and leaves intact past rulings that race may be considered in college admissions. In essence, the ruling lets the battle over affirmative action proceed on individual state fronts.
“This case didn’t involve the fraught question of whether states can pursue race-conscious measures,” said Ilya Shapiro, senior fellow at the libertarian Cato Institute. “Instead, this case was about the democratic process and whether voters can rein in the powers of their state government.”
Six justices agreed with the court’s conclusion that sustains the Michigan measure. Only Chief Justice John Roberts Jr. and Justice Samuel Alito, though, fully agreed with Kennedy’s reasoning, restricting the potential reach of the plurality decision.
Kennedy himself, moreover, emphasized the limits of the ruling.
“It is important to note what this case is not about,” Kennedy stressed. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”
Instead, Kennedy said, the decision is about letting states proceed with “innovation and experimentation” that encourages “greater citizen involvement in democratic processes.”
Justices Clarence Thomas and Antonin Scalia joined in a separate concurring opinion that argued against affirmative action itself. Justice Stephen Breyer, an affirmative action supporter, wrote his own concurring opinion offering other reasons to support Michigan voters.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
“We are fortunate to live in a democratic society,” Sotomayor wrote. “But without checks, democratically approved legislation can oppress minority groups.”
Justice Elena Kagan recused herself from the case because of her past work as the Obama administration’s solicitor general.
Affirmative action advocates decried the ruling, with Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, saying it would “result in Michigan continuing to lose students and faculty of color to states that have the flexibility to consider the whole person before them.”
Total enrollment of African-American students at the flagship University of Michigan campus fell from 7 percent to 4.7 percent between 2006 and 2012, university records show. Latino student enrollment at the school fell from 4.9 percent to 4.3 percent of the total during the same period.
During the 2005-06 school year, the University of Michigan enrolled 1,833 African-American students and 1,214 students identified as Hispanic. This school year, undergraduate enrollment includes 1,226 African-American students and 1,164 Latino students.
The falloff in minority student enrollment occurred after Michigan voters in 2006 approved an amendment to the state’s constitution that prohibits the granting of preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin. White voters largely supported the measure, but African-American voters overwhelmingly opposed it, election surveys showed.
“The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state,” Michigan Attorney General Bill Schuette argued in a legal brief. “Nothing in the Constitution bars the people of Michigan from making that choice.”
The language in the Michigan measure resembles that of California’s Proposition 209, adopted in 1996. Key supporters of the California measure, including former University of California Regent Ward Connerly, championed the Michigan measure as well.
Although Georgia and four other states joined a brief supporting the Michigan ballot measure, California Attorney General Kamala Harris rallied five other states and the District of Columbia to a brief supporting the benefits of diversity. Separately, University of California officials argued that Proposition 209 had slashed minority student enrollment.
Officials with the American Civil Liberties Union of Missouri said they were disappointed with the court’s decision.
“Universities should have the flexibility to attract students with a wealth of perspectives, ideas and backgrounds,” said Executive Director Jeffrey A. Mittman. “The decision to admit a prospective student should be based on a holistic admissions process where race is considered among many factors.”
The Supreme Court’s ruling will have no bearing on the way colleges in Kansas and Missouri try to increase minority enrollments, said administrators at the University of Kansas, Kansas State University, the University of Missouri and the University of Missouri-Kansas City.
“K-State will not change its aggressive commitment to attracting students of color. We just won’t,” said Pat Bosco, vice president for student life at Kansas State.
Connerly’s American Civil Rights Institute tried and failed to get a measure similar to Proposition 209 on the ballot in Missouri in 2008. It hasn’t been on the political radar in Missouri since.
The court’s decision largely sidestepped the costs and benefits of affirmative action, focusing instead on the political process.
“Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues,” Kennedy wrote.
Sotomayor countered that the state’s constitutional amendment put affirmative action supporters at a unique disadvantage. While those proposing other changes in Michigan college admissions policies, such as more preference to athletes or children of alumni, can lobby the university trustees, affirmative action advocates must re-amend the state’s constitution.
The decision returned the court to a perennial conflict that justices effectively ducked last term. The court in June avoided a sweeping decision in a case challenging University of Texas admissions procedures, as the justices opted to send the matter back to a lower appellate court for further review.