Today, the U.S. Supreme Court upheld Michigan’s ban on affirmative action programs in higher education. In a 6-2 ruling, the Supreme Court reversed the lower court and held that Michigan’s ban on using race as a factor in college admissions is constitutional.
In the context of higher education, affirmative action refers to admission policies that provide special access and opportunities for minority groups that have been historically excluded or underrepresented in colleges and universities. The constitutionality of affirmative action has been the topic of intense debate in Michigan and the Supreme Court’s decision is the most recent step in a years-long legal battle over whether state colleges and universities can consider race and gender in college admissions.
The case, Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ____ (2014), grew out of the Supreme Court’s decision in Grutter v Bollinger, 539 U.S. 306 (2003) and the 2006 ballot measure to amend the Michigan state constitution. In Grutter v Bollinger, the Supreme Court upheld the constitutionality of the University of Michigan Law School’s consideration of race in law school admissions. In 2006, in response to the Supreme Court’s decision in Grutter v Bollinger, fifty-eight percent of Michigan voters approved a ballot initiative to amend the state constitution and outlaw any consideration of race in the admission process. The amendment, also known as Proposal 2 or the Michigan Civil Rights Initiative, specifically forbids “state and local agencies from granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in public education, public employment or public contracting.” Proposal 2 effectively barred affirmative action programs in any of Michigan’s public institutions, including its colleges and universities.
In November 2012, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, ruled by a vote of 8-7 that the affirmative action ban violates the U.S. Constitution’s Equal Protection laws. Today, in a majority opinion written by Justice Kennedy, the Supreme Court held that the amendment to the Michigan state constitution to ban affirmative action programs in its colleges and universities does not violate the Equal Protection Clause of the U.S. Constitution.
Interestingly, the Supreme Court did not address the merits of affirmative action directly in its decision. Rather, the Court focused on the constitutional rights of Michigan voters to amend their constitution. Justice Kennedy made clear that “the case is not about how the debate about racial preferences should be resolved,” but rather, “who may resolve it.” Justice Kennedy further stated that “the case is not about the constitutionality or the merits of race-conscious admission policies in higher education. Rather, the question concerns whether and in what manner voters in a state may choose to prohibit consideration of racial preferences.” “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,” wrote Justice Kennedy.
Justice Sotomayor, in a lengthy 58 page dissent, vigorously disagreed with the majority’s decision to uphold the Michigan ban. “We are fortunate enough to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups” said Sotomayor. “For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preservers for all the right to participate meaningfully and equally in self-government” wrote Sotomayor.
Supporters of Proposal 2, such as Michigan’s Attorney General, Bill Schuette, believe that the Equal Protection Clause prohibits the government from giving preferential treatment to any individuals, even to minorities, on the basis of race and that affirmative action programs are outdated. Notably, since the Michigan ban in 2006, the number of freshman who identify as African American has decreased 30 percent at the University of Michigan. Critics of the Court’s decision fear that the recent ruling will result in even a larger decrease in the number of minority students who apply to and attend colleges and universities in Michigan. The Coalition to Defend Affirmative Action believes “Proposal 2 marks a major setback for civil rights in the United States by discriminating against minorities and inhibiting them from achieving equality in society, particularly within the context of higher education.”
A great deal of controversy surrounds the constitutionality of affirmative action programs. Michigan is not the first state to propose legislation prohibiting colleges and universities from allowing preferential treatment on the basis of race, color, sex, ethnicity or national origin. Several other states, such, as Oklahoma, New Hampshire, Arizona, Nebraska, Washington, California, Florida, Texas and California, have considered ballot proposals looking to end affirmative action in admissions. In fact, comparable voter-approved initiatives were enacted in California and Washington.
The Supreme Court’s decision has practical as well as legal implications for colleges and universities throughout the nation. Campus race issues are not just specific to Michigan, and it is likely that this is not the last time federal and state courts will have to consider affirmative action in the nation’s colleges and universities. Public and private universities should review their current admission policies and confirm that said policies comply with federal, state, city and local law.
If your institution has questions or concerns about this topic and you would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at 516-357-3750. This article was written with Hayley Dryer, an associate at the firm.