Last week, the Supreme Court of the United States (SCOTUS) reversed the Sixth Circuit Court of Appeals and declared that a Michigan ballot proposal banning public universities from using race as a factor in admissions was constitutional.
The case of Schuette v. Coalition to Defend Affirmative Action was a challenge to Michigan’s Proposal 2. Passed by Michigan voters in 2006 (by a vote of 58%-42%), Proposal 2 forbade Michigan public universities from giving preference to racial minorities in admissions decisions. Prior to that, Michigan public universities had been, subject to some restrictions, permitted to use race as a factor in admissions. This was on the strength of SCOTUS’s 2003 decision in Grutter v. Bollinger which approved the use of race in college admissions to achieve diversity in higher education. In other words, Proposal 2 did not affect the constitutionality of affirmative action, it simply banned the practice in Michigan public universities.
The Court’s plurality opinion, written by Justice Kennedy, specifically stated that the case did not involve the constitutionality of affirmative action programs. Rather, the case was “about who may resolve it….The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.” Justice Kennedy wrote that there was nothing in the Constitution to prevent Michigan voters from deciding for themselves whether or not to permit affirmative action in their universities.
The opinion distinguished the authority relied on by the Sixth Circuit Court. In Washington v. Seattle School District (1982), the Court developed what is known is the “political process theory.” Under this theory, voters cannot change the way laws are developed to make it more difficult to adopt or keep policies that attempt to protect racial minorities from discrimination. In the Schuette opinion, the Court did not explicitly overrule the political process theory, but it criticized the theory and said that an inquiry based on such thinking could lead to “racial antagonisms and conflict.”
Justice Scalia, joined by Justice Thomas, agreed with the outcome of the case but would have gone further and overruled the cases which support the “political process theory.” Justices Scalia and Thomas said of the Michigan voters: “By adopting [the Equal Protection Clause], they did not simultaneously offend it.”
The only dissenting opinion, written by Justice Sotomayor and joined by Justice Ginsburg, claimed that the Michigan proposal changed “the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities.” Justice Sotomayor argued that the proposal and the decision supporting it was “the last chapter of discrimination.” Nevertheless, it appears that the political process doctrine, if not dead, is at least on life support for the time being. State laws limiting or prohibiting the use of race in college admissions should be much more secure after the Schuette ruling.
The attorneys at Dalton & Tomich, PLC have extensive experience litigating constitutional issues in both state court and nationwide in federal courts. If you feel that your rights have been violated, please do not hesitate to contact us. We would be happy to discuss your matter with you. For more extensive coverage and analysis of this decision and other SCOTUS decisions, I recommend SCOTUSblog. You can read the full text of the opinion here.