Supreme Court backs power of states to ban affirmative action

The Supreme Court on Tuesday ruled that states have the right to ban the consideration of race in the college admission process, dealing another defeat to advocates of affirmative action.

In a 6-2 ruling, the justices upheld a Michigan ballot initiative known as Proposal 2 that was approved in 2006 and changed the state’s constitution to prohibit public colleges and universities from considering race.

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Seven other states — Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington — have similar policies in place.

Justice Anthony Kennedy wrote the plurality opinion in the case, Schuette v. Coalition to Defend Affirmative Action, and said the court determined it does not have the authority to override the will of Michigan voters when it comes to affirmative action.

“[We] concluded that there is no authority in the Federal Constitution or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” he wrote. 

“This case is not about how the debate about racial preferences should be resolved,” Kennedy wrote. “It is about who may resolve it.”

Chief Justice John Roberts and Justice Samuel Alito joined Kennedy on the ruling. Justices Antonin Scalia, Clarence Thomas and Stephen Breyer concurred.

Justice Sonia Sotomayor, the first Hispanic Supreme Court justice, wrote a dissent backed by Justice Ruth Bader Ginsburg that said the decision crushes minority rights.

“Without checks, democratically approved legislation can oppress minority groups," wrote Sotomayor.

Judges "ought not sit back and wish away, rather than confront, the racial inequality that exists in our society," she wrote.

Justice Elena Kagan recused herself from the case, possibly because she worked on affirmative action during her time as solicitor general. She has also served in higher education as dean of Harvard Law School.

White House press secretary Jay Carney declined to weigh in on the ruling, but said President Obama “believes that diversity in the classroom is important for students, campuses and schools.”

“As you know, the president has said that while he opposes quotas and thinks an emphasis on universal and not race-specific programs is good policy, considering race, along with other factors, can be appropriate in certain circumstances,” Carney said.

Congressional Black Caucus Chairwoman Marcia Fudge (D-Ohio) said the ruling sets a "dangerous precedent."

"Today’s Supreme Court decision reinforces that preferential treatment based on privilege in our society can continue, while affirming that public policies that level the playing field for the disadvantaged are not a priority," she said in a statement.

 

"This is another disappointing decision by the Supreme Court that removes federal protection against racial discrimination in our communities, and allows discrimination to occur more frequently on campuses across the country and in other sectors of our society.”

The Supreme Court’s decision is another setback for supporters of affirmative action, which became prominent in the wake of the 1960s civil rights movement and has become a politically charged issue.

Former President John F. Kennedy was the first to use the term affirmative action in 1961 when he signed an executive order directing government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

The debate over affirmative action reached a boiling point in 2003, when the high court decided two separate affirmative action cases dealing with the University of Michigan. The rulings were the first time in 25 years the court had explored the issue.

In a win for affirmative action supporters, the court narrowly ruled in a 5-4 decision that Michigan's law school could consider race in admissions decisions, so long as it was weighed against other factors.

Justice Sandra Day O’Connor, who is now retired, wrote the majority opinion for the case, Grutter v. Bollinger, and said the 14 Amendment’s Equal Protection Clause does not prohibit the school from using a narrowly tailored race criteria in admissions decisions to create a diverse student body.

In the second case, Gratz v. Bollinger, the court ruled 6-3 that the university couldn’t include race in a points system for undergraduate admissions.

Before Tuesday's decision, the high court had last ruled on affirmative action in June 2013, when the justices said states could institute affirmative action programs if they choose to do so, but they need to be pass a test of “strict scrutiny” whereby no other factors would contribute to diversifying the student body. 

Mark Rosenbaum, the attorney who argued the case for the American Civil Liberties Union (ACLU) last October, said Tuesday’s decision means minority students can’t compete on the same playing field as other students.

“Proposal 2 unfairly keeps students from asking universities to consider race as one factor in admissions, but allows consideration of factors like legacy status, athletic achievement and geography," Rosenbaum said in a statement.

Since Proposal 2 took effect, the African-American population at the University of Michigan at Ann Arbor has dropped 33 percent even though overall enrollment has increased 10 percent, the ACLU said.

— This story was updated at 4:51 p.m. 

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