Supreme Court upholds college affirmative action ban

The exterior of the U.S. Supreme Court is seen in Washington March 5, 2014.  Credit: Reuters
The exterior of the U.S. Supreme Court is seen in Washington March 5, 2014.
Credit: Reuters

The U.S. Supreme Court on Tuesday dealt a blow to the use of racial preferences in higher education by upholding a Michigan law that bans the practice in state university admissions.

On a 6-2 vote, with Justice Elena Kagan not taking part in the case, the court rejected a challenge to the law, although the justices were divided as to the legal rationale. The court made it clear it was not deciding the larger and divisive question of whether affirmative action admission policies can be lawful.

The court rejected the argument made by civil right groups that the 2006 Michigan constitutional amendment that banned the practice had imposed burdens on racial minorities in violation of the U.S. Constitution’s guarantee of equal protection.

Affirmative action programs, first advocated in the 1960s to combat past discrimination against racial minorities, have faced a backlash from conservatives in recent decades.

Michigan is one of eight states to ban affirmative action. The others are Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

The justices in the majority were divided three ways.

Justice Anthony Kennedy wrote an opinion, joined by Chief Justice John Roberts and Justice Samuel Alito, saying that the appeals court that threw out the law did not have the authority to do so.

“This case is not about how the debate about racial preferences should be resolved,” Kennedy wrote. “It is about who may resolve it.”

The dissenting votes came from two of the liberal members of the court, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg.

Sotomayor wrote that the decision was a blow to “historically marginalized groups, which rely on the federal courts to protect their constitutional rights.”

The court had undermined its own precedents, which state that the majority cannot suppress minorities’ right to participate in the political process, Sotomayor added.

Justice Antonin Scalia wrote a separate opinion, joined by Justice Clarence Thomas, in which he said that challenges to laws that rest on equal protection claims must show that the law reflects a discriminatory purpose. The Michigan law did not, he said.

Justice Stephen Breyer was the only member of the liberal wing of the court to join the majority. He wrote that the ban was constitutional because the prohibition moved the decision on whether to adopt race-conscious admissions policies from university officials to the voters.

The case was argued in October 2013, just four months after the justices issued a narrow ruling on affirmative action in a different case involving the University of Texas at Austin.

In a lopsided 7-1 ruling in that case that few had expected, the court warned that university policies that took race into account could be more vulnerable to legal challenges in the future. But the court did not strike the policy down and instead sent the case back to a lower court for reconsideration.

The Michigan case raised a different legal question, focusing not on the state’s ban on affirmative action itself but rather the political process that led to its amendment being enacted.

Michigan has long been a legal battleground over the use of affirmative action in higher education. The state’s amendment was passed as a direct result of a previous courtroom battle that reached the Supreme Court.

In November 2012, a divided 6th U.S. Circuit Court of Appeals in Cincinnati found the ban to be unconstitutional, prompting the state to appeal to the high court.

The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, 12-682.



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