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Justices Uphold Michigan Ballot Ban on Race Preferences in Higher Ed.

[UPDATED with reaction, Tuesday 6:58 p.m.]

The U.S. Supreme Court on Tuesday upheld a Michigan ballot initiative that bars race-based preferences in admissions at the state's universities, in a case that was closely watched by the K-12 community.

The high court voted 6-2 for the outcome, with Justice Anthony M. Kennedy announcing the judgment and writing a plurality opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

"This case is not about how the debate about racial preferences should be resolved," Kennedy said in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682). "It is about who may resolve it. 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."

Justices Antonin Scalia, Clarence Thomas, and Stephen G. Breyer wrote or joined opinions concurring in the judgment.

Justice Sonia Sotomayor wrote a strong dissent that was joined by Justice Ruth Bader Ginsburg, parts of which Sotomayor read from the bench Tuesday morning.

"Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents," Sotomayor said.

"Short of amending the state constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan's public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body," she added.

 Justice Elena Kagan did not participate in the case.

2006 Ballot Initiative

The 2006 ballot measure known as Proposal 2 or Section 26 also bars race preferences in K-12 public schools and other areas of state government, but the case before the high court concerned only the measure's prohibition of race preferences in college admissions.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, said in an 8-7 ruling in 2012 that the Michigan measure violated the 14th Amendment equal-protection rights of racial minorities in the state by making it harder for them to achieve a political goal, namely, the adoption of a race-conscious admissions policy by the state board of regents.

The 6th circuit court's ruling was based on a legal theory known as the "political process" or "political restructuring" doctrine.

The 6th Circuit court majority said Michigan's Proposal 2 violated the equal-protection clause as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a local fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

The appeals court said race-conscious admissions policies mainly benefit racial minorities. It said that Proposal 2 brought about a significant change in the ordinary political process and that it was a racial classification that did not survive strict scrutiny, or the highest level justification needed to uphold a government policy.

In his opinion for the plurality today, Kennedy discussed the political process doctrine at length.

"Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice," Kennedy wrote. "That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity."

Scalia, in his opinion concurring in the judgment, said he would go further than the plurality by overruling Washington v. Seattle School District and Hunter v. Erickson.

Breyer said the Seattle-Hunter political-process doctrine did not easily fit the Michigan situation, because university boards had delegated authority to faculty committees to decide whether to have race-conscious admissions policies.

"Thus, un-elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan's constitutional amendment," Breyer said. 

Proposal 2 permissibly "took decisionmaking authority away from these unelected actors and placed it in the hands of the voters," he said.

Meanwhile, in her dissent, Sotomayor delivered a pointed answer to Chief Justice Roberts' well-known statement from the 2007 case of Parents Involved in Community Schools v. Seattle School District. In that case, in which the court sharply limited the ways school districts could voluntarily take race into account in assigning students to schools, Roberts had said: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Sotomayor, who was not on the court in 2007, today said this: "In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable."

"The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination," she continued.

Roberts, in a brief concurrence today, answered Sotomayor.

The dissent "urges that '[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: "I do not belong here."' But it is not 'out of touch with reality' to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and--if so--that the preferences do more harm than good."

Varied Reactions

Theodore M. Shaw, a law professor at Columbia University in New York City a veteran civil rights litigator, said the decision may encourage opponents of race-conscious admissions plans to continue to battle them in the political arena.

"The message is [for opponents of considering race] to try to ban diversity efforts through the political processes," he said in a conference call with reporters. "But there is no one controlling opinion, so there is a sense that nothing is definitively resolved here."

Dennis Van Roekel, the president of the National Education Association, which had filed a friend-of-the-court brief on the side of the Coalition to Defend Affirmative Action, issued a statement that said, "Today's decision turns back our nation's commitment to racial equality and equal treatment under the law by sanctioning separate and unequal political processes that put undue burdens on students. The Supreme Court has made it harder to advocate and, ultimately, achieve equal educational opportunity."

Michigan Attorney General Bill Schuette, whose office defended Proposal 2, said, "Today's decision by the U.S. Supreme Court is monumental. ... In 2006, the citizens of Michigan enshrined the basic concept of equality and fairness into our Constitution.  It is fundamentally wrong to treat people differently based on the color of their skin."

Shanta Driver, the national chairwoman of the group that challenged the ballot initiative, whose full name is the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights By Any Means Necessary, issued a statement calling the decision "racist."

"It is this court's Plessy v. Ferguson," said Driver, who argued the group's case before the justices. "At the very moment that America is becoming a majority minority nation this Court is declaring its intention to uphold white privilege and to create a new Jim Crow legal system."

Jonathan H. Adler, a law professor at Case Western University, in a post on the legal blog Volokh Conspiracy, called the decision "messy."

"The lack of a clear holding and split over the political process precedents will create difficult work for lower courts trying to make sense of today's opinion should the need arise in subsequent cases," Adler said.

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