The Supreme Court Upholds Ban on Affirmative Action

Nicholas Fortuna, April 29, 2014.

On April 22, 2014, in the case Schuette v. Coalition to Defend Affirmative Action the U.S. Supreme Court voted 6-2 to uphold a voter referendum outlawing affirmative action at Michigan’s public universities. In five separate opinions, the justices set out starkly conflicting views. The majority more or less said that policies affecting minorities that do not involve intentional discrimination should be decided by the voters not judges. Seven other states, including California, Arizona, and Florida have already stopped using preferences for racial minorities in college admissions. According to University of Michigan, Black enrollment dropped 33 percent from when the ban on affirmative action first took effect in 2006.

Justice Anthony M. Kennedy wrote for the majority. He stated that the “case is not about how the debate about racial preferences should be resolved. 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.” The court specifically stated that because this was not a challenge to race-conscious admissions, the Equal Protection Clause and two previous Supreme Court decisions, Gutter v. Bollinger and Fisher v. University of Texas at Austin were not at issue.

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 public policies that are developed to make it more difficult to adopt or keep policies that protect racial minorities from discrimination. This approach, known as “political-process theory,” is traced mainly to a 1982 Supreme Court ruling in Washington v. Seattle School District that overturned a Washington ballot measure barring the use of busing to achieve racial desegregation in the City’s public schools.

The Court rejected out of hand that theory, implicitly overruling part of the 1982 case. The political-process theory, Justice Kennedy wrote, was not essential to the result in the 1982 case, and was itself a form of encouraging a tendency to group minority individuals together as if they commonly shared the same views on public policy. Doing so, according to Kennedy, would require the courts to classify groups based upon “demeaning stereotypes.” By contrast, Kennedy said that voters can be trusted to decide racial preferences issues at the polls.

At the heart of the political-process doctrine, according to Seattle, is that the Equal Protection Clause prohibit laws that “subtly distort governmental processes in such a way as to place special burdens on the ability of minority groups.” The majority and concurring opinions abandon the Equal Protection analysis in preventing communities from undermining permissible affirmative action programs for a more simplistic and superficially appealing approach: the Equal Protection Clause permits race-conscious programs in admissions when certain conditions are met, but does not require it.

Historically, however, one of the major justifications for judicial remedies to discrimination was that the majority of the citizenry was unwilling and in many circumstances sought to prevent minorities from equally participating in the rights and privileges afforded to the majority. Putting the determination of whether permissible affirmative action programs may be implemented back in the hands of the citizens and out of the courts eliminates an important venue for minorities to protect the programs that allow them to meaningfully overcome disadvantages of past discrimination and participate as well as advance within the ranks of society.

Justice Sonia Sotomayor wrote a passionate and sometimes mocking dissent, so much so that Chief Justice Roberts defensively responded to Justice Sotomayor in a concurring opinion. Sotomayor stated that the Constitution required special vigilance in light of the history of slavery, Jim Crow, and recent examples of discriminatory changes to state voting laws. Her opinion ran 58 pages, longer than the other four combined. It was at once personal in that it reflected her experiences with affirmative action and outrage at the erosion of protection of minorities, but included a cogent analysis of how the majority distorted and ignored precedent to reach the result it did. She stated that “the Constitution does not protect racial minorities from political defeat…But neither does it give the majority free rein to erect selective barriers against racial minorities.” The Justices voting with the majority did not believe that the result of this decision was injurious to minorities.