By Lisa Soronen

The Supreme Court held 6-2 that voters may prohibit affirmative action in public universities' admission decisions in Schuette v. Coalition to Defend Affirmative Action.

In 2003 cases involving the Univeristy of Michigan (Gratz v. Bollinger and Grutter v. Bollinger), the Supreme Court held that public universities may consider race in admission decisions. In 2006, Michigan voters adopted a constitutional amendment that prohibited preferential treatment in admission to public universities on the basis of race, sex, color, ethnicity or national origin. 

The majority of the court held this amendment does not violate the Equal Protection Clause of the 14th Amendment. Justice Anthony M. Kennedy, in a plurality opinion joined only by Chief Justice John Roberts and Justice Samuel Alito, concluded that this case is about who and not how the debate over racial preferences should be resolved. “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.”

In reaching this holding Kennedy rejected a broad reading of past precedent that any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. Kennedy pointed to numerous practical problems with the so-called “political process” doctrine including: assuming that all individuals of the same race think alike; defining race-based categories in a society where “those lines are becoming more blurred”; and determining which policy realms racial groups have a political interest.    

Justices Antonin Scalia and ClarenceThomas agreed the ballot measure was constitutional but would have overruled the precedent that Kennedy read narrowly. For the first time since she joined the court in 2009, Justice Sonia Sotomayor read a summary of her dissent, which Justice Ruth Bader Ginsberg joined, from the bench—signaling her displeasure with the court’s decision. Justice Stephen Breyer provided the sixth vote in favor of the amendment but wrote separately. Justice Elena Kagan did not participate in the case.    

As NCSL’s Affirmative Action: State Action chart describes, a number of states prohibit the use of affirmative action in a variety of contexts. While this case was limited to the use of race in public university admission decisions, Michigan’s constitutional amendment also prohibits the use of racial-preference in state and local government employment and contracting. Presumably, these provisions are also constitutional. 

While those for and against the ballot measure disagree about the wisdom of the court’s decision, both agree that it will only be a matter of time until more states follow Michigan’s lead.    

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on Supreme Court cases for the NCSL Blog.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.


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