The U.S. Supreme Court has upheld a Michigan ban on affirmative action in higher education. The 6-to-2 decision is likely to set the stage for further battles over affirmative action in the political arena, as well as the courts.
In 2006, Michigan voters, by a margin of 58 percent to 42 percent, passed a referendum to amend the state Constitution and ban any consideration of race in college and university admissions. A federal appeals court invalidated the ban, citing earlier Supreme Court decisions that prevented restructuring government to disadvantage minorities.
On Tuesday, however, the high court reversed the lower court decision and reinstated the affirmative action ban. Justice Anthony Kennedy wrote the lead opinion for the court, but no one justice's legal reasoning commanded a majority. Kennedy stressed that Tuesday's ruling is not about how the debate over affirmative action should be resolved, but about who should resolve it. And here, he said, the voters were perfectly free to get rid of a voluntary affirmative action program without interference from the courts.
Despite Kennedy's protestations to the contrary, Harvard Law School professor Mark Tushnet says the decision in fact telegraphs something important about the court and affirmative action. "It is clear that five justices are either extremely uncomfortable with affirmative action or believe that affirmative action programs are automatically unconstitutional," he says.
A somewhat different take came from Harvard Law School professor Charles Fried, who served as solicitor general in the Reagan administration. Fried says Kennedy's opinion "deftly negotiated" some tricky legal territory to reach the right result. "The outcome, I think, is completely correct because otherwise you would have the mad result that affirmative action is on a ratchet," meaning that once a voluntary affirmative action plan is adopted, it would be unconstitutional to withdraw it.
In upholding the ban on affirmative action, Justice Kennedy's opinion also cut back on the so-called political process doctrine under which the court for decades has eliminated barriers to minority participation in the political process.
His opinion, however, was joined in full only by Chief Justice John Roberts and Justice Samuel Alito. Justices Antonin Scalia and Clarence Thomas would have struck down the political process doctrine entirely. And Justice Stephen Breyer, normally a liberal vote on racial matters, had a yet different approach.
Justice Sonia Sotomayor, in an impassioned dissent she read aloud from the bench, said the Constitution does not guarantee victory in the political process for minorities, but it does guarantee that the majority may not stack the deck. And here, she said, by amending the state Constitution, the referendum had rigged the rules, making it impossible for minorities to engage in the kind of lobbying for preferences that everyone else can engage in at the legislature or the board of regents. Sotomayor's dissent was joined by Justice Ruth Bader Ginsburg. Justice Elena Kagan was recused from the case.
The high court's decision is likely to provoke more battles over affirmative action in the states. Seven states, including Michigan, now have bans on affirmative action in higher education, some enacted by referendum, and some by executive order of the governor, as in Florida.
The experience with the ban in California "has been difficult because immediately following the ban on race-conscious affirmative action, the enrollment of African-Americans and Latinos plummeted in the selective higher education institutions," says Christopher Edley, former dean of the UC Berkeley law school. He adds that the school "has yet to fully recover."
Other states with bans have had similar precipitous drops in minority enrollment, but some have seen minority enrollment stay steady or even climb.
Whatever the merits of Tuesday's ruling, many see it in a broader context.
"I think the framers would be shocked by the direction that the Supreme Court has taken with regard to race," says Louisiana State University law professor Paul Finkelman, one of 75 historians and law professors who filed a brief in the Michigan case. "The court has essentially said that the Constitution does not provide a mechanism for preserving and creating racial and ethnic equality in the United States."
Harvard's Tushnet looks at the history of the last 60 years and sees a court that used to protect minority rights now nullifying measures like the Voting Rights Act, a law passed by Congress to prevent discrimination in voting. "When you look at the court's decisions on issues of race over the past probably decade, it is interesting that the beneficiaries of the race-related decisions are basically, not to be too crude about it, white people," he says.
To that, the court's conservative majority might observe that we have an African-American president and increased minority voting, sometimes at higher rates than whites. In short, that there is nothing to fix anymore, and that "the way to stop discrimination based on race," as Chief Justice Roberts once put it, "is to stop discriminating based on race."