Blow to affirmative action: Supreme Court OK's voter-approved ban for Michigan universities

  • Article by: MARK SHERMAN , Associated Press
  • Updated: April 22, 2014 - 2:50 PM

WASHINGTON — A state's voters are free to outlaw the use of race as a factor in college admissions, the Supreme Court ruled Tuesday in a blow to affirmative action that also laid bare tensions among the justices about a continuing need for programs that address racial inequality in America.

The 6-2 decision upheld a voter-approved change to the Michigan Constitution that forbids the state's public colleges to take race into account. That change was indeed up to the voters, the ruling said, over one justice's impassioned dissent that accused the court of simply wanting to wish away inequality.

The ruling bolsters similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

Justice Anthony Kennedy said voters in Michigan chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court's prior cases gives judges the authority to undermine the election results.

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

He stressed that the court was not disturbing the holding of a 2003 case from Michigan —which gave rise to the 2006 Constitution change — permitting the consideration of race in admissions. A Texas affirmative action case decided in June also did nothing to undermine that principle, Kennedy said.

In a separate opinion siding with Kennedy, Justice Antonin Scalia said Michigan residents favored a colorblind constitution and "it would be shameful for us to stand in their way."

Strongly dissenting from the majority, Justice Sonia Sotomayor said the decision trampled on the rights of minorities, even though the Michigan amendment was adopted democratically.

"But without checks, democratically approved legislation can oppress minority groups," said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor.

Michigan voters "changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities," Sotomayor said.

Judges "ought not sit back and wish away, rather than confront, the racial inequality that exists in our society," she said. She is one of two justices, along with Clarence Thomas, who have acknowledged that affirmative action was a factor in their college and law school admissions. Sotomayor attended Princeton University and Thomas is a graduate of the College of the Holy Cross. They both attended law school at Yale University. Thomas is a staunch opponent of racial preferences.

At 58 pages, Sotomayor's dissent was longer than the combined length of the four opinions in support of the outcome.

Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Scalia and Thomas agreed with Kennedy.

Responding to Sotomayor, Roberts said it "does more harm than good to question the openness and candor of those on either side of the debate."

Justice Elena Kagan did not take part in the case, presumably because she worked on it at an earlier stage while serving in the Justice Department.

University of Notre Dame law professor Jennifer Mason McAward said the opinions by five justices point "to a much more nuanced and heated debate among the justices regarding the permissibility and wisdom of racial preferences in general."

In 2003, the Supreme Court upheld the consideration of race among many factors in college admissions in a case from Michigan.

Three years later, affirmative action opponents persuaded Michigan voters to change the state constitution to outlaw any consideration of race.

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