The U.S. Supreme Court upheld Michigan’s ban on affirmative action in higher education Tuesday morning, in the latest ruling to effectively weaken affirmative action without killing it.
The ruling has significant policy repercussions: It means Michigan’s public universities no longer have the discretion to decide whether they want to use affirmative action policies to diversify their student bodies; they are banned by state law from considering race in admissions.
In 2003, the University of Michigan took its right to implement an affirmative action policy all the way up to the U.S. Supreme Court and won. But three years later, Michigan voters blocked admissions policies by passing a ban through a ballot initiative. Between 2006 and 2012, black enrollment fell 30 percent at the University of Michigan’s undergraduate and law schools after the ban went into effect, according to Bloomberg report.
But the three-justice majority opinion disavows any larger implications on the constitutionality of affirmative action. “Before the Court addresses the question presented, it is important to note what this case is not about,” Justice Anthony Kennedy wrote in a majority opinion signed only by Chief Justice John G. Roberts and Justice Samuel Alito. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”
Instead, it is a case about the political process, and whether Michigan does or doesn’t have the right to ban affirmative action by ballot initiative. A federal appeals court held twice that it did not have that right, because doing so gives minorities unequal access to that process. But in an unsurprising move, a six-justice U.S. Supreme Court plurality disagreed, holding that “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.”
Among the court’s more liberal justices, only Justice Stephen Breyer joined the majority holding, deferring to the power of the “ballot box” to make policy, despite the the “serious educational problems” that “endure.” Justice Elena Kagan recused from the ruling. But Justice Sonia Sotomayor was joined by Justice Ruth Bader Ginsburg in an impassioned dissent that Sotomayor read aloud from the bench, to reiterate her strong opposition to the holding.
Taking up the reasoning of the lower courts that had invalidated the ban, Sotomayor explained that the ban does more than give Michigan voters the power to decide whether they want affirmative action or not. It actually gives minorities less power to affect the political process than others, rolling back the impact of previous U.S. Supreme Court rulings protecting the right specifically of Michigan universities to use affirmative action. This is because minority voters who want to reinstate affirmative action at a Michigan university will have to do no less than repeal the constitutional amendment that banned the policy throughout the state. Other potential students wishing to implement other sorts of policies, however, that favor legacy admissions, for example, only have to appeal directly to the university.
“The majority may not suppress the minority’s right to participate on equal terms in the political process,” Sotomayor wrote.
She explains it this way:
We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self government. That right is the bedrock of our democracy, for it preserves all other rights.
As the Leadership Conference on Civil and Human Rights’ Wade Henderson put it, “Today’s decision reiterated the constitutionality of race-conscious admissions at colleges and universities across the nation. But it also sanctioned two tiers of access in our nation’s colleges and universities: one for the children of donors, alumni, and other interest groups, and another for racial and ethnic minorities.”
The ruling comes after another Supreme Court decision last year rejected a lower court’s approval of the University of Texas at Austin’s affirmative action plan, but did not invalidate affirmative action outright, as some expected.