In a number of cases since Regents of the Univ. of Cal. v. Bakke, the Supreme Court has upheld in a variety of contexts the use of some degree of race based preferences in the admissions process for colleges and universities. Although not its most recent decisions in this area, two of its most discussed decisions came out of Michigan. In one, Gratz v. Bollinger the Supreme Court in 2003 found that the undergraduate admissions process at the University of Michigan violated the Equal Protection Clause of the U.S. Constitution by its use of race based preferences. At the same time, it also held, in Grutter v. Bollinger, that the University of Michigan Law School’s use of race based preferences was permissible. Following these decisions, Michigan voters adopted Proposal 2, which became Article I, Section 26 of the State Constitution. As relevant, it provides:
The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Emphasis added.)
This Proposal was challenged in two cases. The District Court initially found that it was permissible for the voters of Michigan to adopt this constitutional amendment. The Sixth Circuit Court of Appeals, in an original 2-1 decision and a subsequent 8-7 en banc decision, held that the Proposal was unconstitutional. Today, in a 6-2 decision in Schuette v. Coalition to Defend Affirmative Action, the U. S. Supreme Court has upheld the State’s adoption of this amendment. The plurality opinion was written by Justice Kennedy, and joined in by Chief Justice Roberts (who also issued a concurrence) and Justice Alito. Justice Scalia issued a concurrence which was joined by Justice Thomas. Justice Sotomayor wrote a dissent, joined in by Justice Ginsburg. Justice Kagan did not participate in the Court’s decision. As Justice Kennedy noted at the outset of the Court’s decision:
Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. … In Fisher [v. University of Texas at Austin], the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decision, in particular with respect to school admissions.
The plurality opinion essentially concludes that notwithstanding prior Court precedent (creating the “political-process" doctrine) which recognized that voter action which effectively “insinuate[d] the State into [a] decision to discriminate by encouraging that practice,” in a way that “was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race,” could be unconstitutional, that was not the case here. Justice Kennedy closed his opinion by noting that “[t]his is not about how the debate about racial preferences should be resolved. 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.” Justice Scalia, joined by Justice Thomas, would overrule the Court’s precedent establishing the political process doctrine, rather than distinguish it away as the plurality did. Justice Scalia also noted that he was parting company with the plurality because he found that their view at least left “ ajar an effects-test escape hatch” that might permit the finding of an Equal Protection Clause violation in the absence of discriminatory intent, based on disparate impact, which he argues has no place in the Court’s jurisprudence. For Justice Sotomayor, Proposal 2 fell squarely within the political-process doctrine: “When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.” As she noted in closing:
The Constitution does not protect racial minorities form political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.
As noted at the outset, this decision does not change the legal landscape with regard to the permissibility, as a matter of federal constitutional law, of race conscious admissions policies in higher education. And in fact it has little bearing on what may or can happen in the world of private higher education. It does, however, reaffirm the ability of the electorate to enforce its views at the ballot box on this highly important and charged issue in the realm of public education.