Supreme Court Upholds Michigan Affirmative Action Ban

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The Supreme Court

In a 6-2 decision released Tuesday, the Supreme Court upheld the Michigan law banning the use of racial preference in higher education admission decisions. Justice Elena Kagan recused herself, presumably because of her involvement during her time as Solicitor General.

Justice Anthony Kennedy wrote an opinion joined by Chief Justice John Roberts and Justice Samuel Alito. Justice Kennedy writes, “This case 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 Sonia Sotomayor wrote the dissenting opinion and was joined by Justice Ruth Bader Ginsberg. Justice Sotomayor argues that “historically marginalized groups” would be the ones who suffer from the decision.

Justice Antonin Scalia wrote an opinion and was joined by Justice Clarence Thomas. Because the law did not purposefully discriminate on any one race, Scalia argues, the law could not be challenged on equal protection claims.

The court addressed a similar case in June in Fisher v. University of Texas. The court ruled then that policies using race as a factor for admission are constitutional in states that elect to such a policy. The vote was 7-1 with Justice Kagan recusing. This Michigan decision is distinct in that it ruled voters could not prohibit affirmative action programs, adding the element of political process in enacting the controversial amendment.

Michigan is one of only eight states to ban affirmative action, the others being Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma, and Washington.

Of course, the law only applies to public state institutions. Any private institution wishing to raise the quota of minority students to, say, ten percent for Black, Hispanic, and Native Americans respectively may do so at their own risk.

The case is filed as Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, 12-682.