WASHINGTON - The U.S. Supreme Court on Tuesday dealt a blow to affirmative action, upholding a voter-approved ban on racial preferences in admissions at Michigan’s state-run universities in a decision that provides a blueprint for other states wishing to enact similar bans.
The justices, voting 6-2, said racial preferences were a legitimate subject to be put before the state’s voters. A federal appeals court had said Michigan unconstitutionally stripped the rights of members of racial minority groups.
“This case is not about how the debate about racial preferences should be resolved,” Justice Anthony Kennedy wrote in the court’s lead opinion. “It is about who may resolve it.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented from the ruling. Sotomayor, who took the unusual step of reading a summary of her dissent from the bench, wrote that the court was “permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan.”
Chief Justice John Roberts has sought to steer the court toward a colorblind approach to the Constitution. Sotomayor wrote that Roberts’s approach was “out of touch with reality.”
Roberts responded that “it is not ‘out of touch with reality’” to conclude that racial preferences might “do more harm than good” by sowing doubt among beneficiaries about their own qualifications.
Kennedy wrote for himself, Roberts and Justice Samuel Alito. His opinion distinguished, without overruling, decades-old Supreme Court decisions barring government actions that restructure the political process along racial lines. In a 1982 case, the court invalidated a Washington ballot initiative that had prohibited busing for purposes of desegregating schools.
“Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race,” Kennedy wrote. He said that wasn’t the case with the Michigan initiative.
Justices Antonin Scalia and Clarence Thomas wrote separately to say they would have gone further and overturned the political-restructuring rulings. Another member of the majority, Justice Stephen Breyer, wrote a separate opinion to say he would have ruled more narrowly than Kennedy.
Justice Elena Kagan didn’t take part in the case. Although she didn’t specify a reason, she was President Barack Obama’s solicitor general when the administration had a chance to get involved in the litigation.
A decade ago, the University of Michigan won a Supreme Court decision that let institutions across the country continue to use race as an admissions factor. The survival of the voter-approved initiative means that ruling is nullified for the university that secured it.
Michigan is one of 10 states where race-conscious admissions are barred at public institutions, by ballot initiative or other government action.
Black enrollment is down about 30 percent at the University of Michigan’s undergraduate and law schools since the measure took effect, according to the university’s figures. Blacks made up just 4.6 percent of undergraduate students last fall.
The justices in their last nine-month term overturned a core part of the Voting Rights Act, the law designed to protect members of minorities at the polls. The court also issued a compromise ruling that ordered tougher judicial scrutiny of university affirmative-action programs.
Proponents of affirmative action said Tuesday’s ruling, while not focused on the merits of the practice, is a setback for racial equality. Critics cheered the decision as having the potential to spur states to enact legislation outlawing race-based preferences without waiting for voter approval.
The momentum from Tuesday’s decision should push states to enact anti-affirmative-action legislation, said Edward Blum, director of the Project on Fair Representation, an Alexandria, Va.-based advocacy group designed to promote litigation challenging racial and ethnic classifications and preferences.
“Your race should not be something that’s used to harm you or help you gain admission to a college or university, gain a job or win a contract,” said Blum, who organized a challenge to a University of Texas admissions policy that guaranteed slots to minority-group students at predominantly Hispanic and black schools.
“This is another nail in the coffin of affirmative action,” said Richard Kahlenberg, a senior fellow at the Century Foundation, a Washington-based public policy research organization, and a proponent of affirmative action based on income rather than race. “This moves us further in the direction of finding alternatives to racial preferences to promote diversity.”
“I think this was the right decision,” he added.
But others disagreed.
Decisions like Tuesday’s will make it harder to advocate for equal educational opportunity, said Dennis Van Roekel, president of the National Education Association, which represents public school teachers and other employees.
“Having spent 23 years in the classroom, I saw first-hand the important role diversity played in the classroom and how learning from people with different backgrounds and perspectives can benefit all students, our workforce and our country as a whole,” Van Roekel said in a statement.
“To take away the rights of minorities is a shocking decision,” said George Washington, a Detroit lawyer who challenged the law. “With this, and the voting rights decision last year, it’s clear the Supreme Court is undoing the rights gained by blacks and Latino people in the 1960s and 1970s.”
White House Press Secretary Jay Carney said the Obama administration was reviewing Tuesday’s ruling.
While Obama “opposes quotas,” there are times when “considering race, along with other factors, can be appropriate in certain circumstances,” Carney said.
Tuesday’s ruling involved different legal issues from those in past affirmative-action disputes. Rather than deciding whether universities violate the rights of white students by using affirmative-action programs, the court considered whether state bans on racial preferences amount to discrimination against members of minority groups.
A federal appeals court said the 2006 Michigan measure put members of racial minority groups at a unique disadvantage. The 8-7 decision said they are barred from asking universities for special preferences - something athletes, band members and children of alumni could still do.
Proposal 2, as the 2006 initiative was known, bars preferences on the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law was the only part before the Supreme Court.
Proposal 2 was spearheaded by Jennifer Gratz, a white woman who sued over the University of Michigan’s racial preferences in 1997 after being rejected for admission. Michigan voters approved Proposal 2, a constitutional amendment, 58 percent to 42 percent.
The University of Michigan’s policies already are consistent with Proposal 2, Rick Fitzgerald, a spokesman for the school in Ann Arbor, said in an email.
“We remain committed to the goal of a diverse, academically excellent student body, and will continue to seek to achieve that goal in ways that comply with the law,” he said.
Leaders of the Black Student Union at the university have proposed ways to increase black enrollment and enhance the campus for members of minority groups. They include lower housing costs for low-income students, better promotion of emergency financial assistance and improvements at a multicultural center.
The group wants black enrollment to be 10 percent, which is closer to the state’s 14 percent black population.
The university also is making money available for transportation between the campus and surrounding communities when buses aren’t available.
A statement from University President Mary Sue Coleman said the school would use “every legal tool at our disposal to bring together a diverse student body.”
The case is Schuette v. Coalition to Defend, 12-682.
Information for this article was contributed by Greg Stohr, Sophia Pearson, Janet Lorin, John Lauerman and Toluse Olorunnipa of Bloomberg News and by Ed White, David Eggert and Emma Fidel of The Associated Press.
Front Section, Pages 1 on 04/23/2014