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U.S. Supreme Court upholds Michigan ban on affirmative action in Higher Ed

U.S. Supreme Court upholds Michigan ban on affirmative action in Higher Ed

Sotomayor dissent: Removal of “race-sensitive” preferences equals “stacking the deck” and “forcing the minority alone to surmount unique obstacles”

The decision was announced today (h/t Hot Air) in the case involving the Michigan referendum banning use of race in admissions in Higher Ed and other public services:

“The state 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.”

We previously profiled the case and the issues.

The vote was 6-2, with Sotomayor joined in dissent by Ginsburg, and Kagan having recused herself.

It will take some time to digest it all, but here is the NY Times report:

The Supreme Court on Tuesday upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities.

“This case is not about how the debate about racial preferences should be resolved,” Justice Anthony M. Kennedy wrote in a controlling opinion joined by Chief Justice John G. Roberts Jr., and Justice Samuel A. Alito Jr. “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 read an impassioned dissent from the bench. She said the initiative put minorities to a burden not faced by other applicants to college.

“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent….

The vote in the case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, was 6-2. Justice Elena Kagan recused herself, presumably because she had worked on the case as United States solicitor general.

The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.

Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the state Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action.


Justice Kennedy in the majority opinion explained that this case was the opposite of the manner in which the Court has previously addressed affirmative action. Rather than judging whether affirmative action remedies went too far, the court had to decide whether it could require a state that chose not to have affirmative action at all to do so. The Court concluded not:

“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. The consideration of race in admissions presents complex questions, inpart addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, 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 theConstitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particularwith respect to school admissions.” (at 4)

* * *

“Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that racebased preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant caseis simply that the courts may not disempower the votersfrom choosing which path to follow. In the realm of policydiscussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.” (at 13-14)

Justice Scalia, joined by Thomas, in a concurring opinion made the point we made at the Saturday Night Card Game long ago; how is it that banning discrimination can be deemed discrimination?

“It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the questionanswers itself. “The Constitution proscribes governmentdiscrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law.” (at 1)

Justice Sotomayor’s Dissent was heavy on policy (something the majority and Scalia concurrance took strong issue with).

“We are fortunate to live in a democratic society. But without checks, democratically approved legislation canoppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discriminationunder existing laws, equal protection does not end there.Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in selfgovernment. That right is the bedrock of our democracy,for it preserves all other rights.” (at 1)

Among other things, Justice Sotomayor refused to use the term “affirmative action,”:

“Although the term “affirmative action” is commonly used to describecolleges’ and universities’ use of race in crafting admissions policies, Iinstead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points”system, whereby an institution accords a fixed numerical advantage toan applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universitiesare permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003).” (fn. 2)

Here’s how Justice Sotomoayor framed the issue: Taking away racially sensitive admissions uniquely harms those who benefit from that sensitivity:

“This case involves this last chapter of discrimination: Amajority of the Michigan electorate changed the basicrules of the political process in that State in a manner thatuniquely disadvantaged racial minorities.” (at 2) …

“But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.” (at 4)

This is, as Kurt Schlichter calls it, essentially a ratchet theory, that no preference ever can be rolled back otherwise the rollback is discrimination.

At points, Justice Sotomayor’s dissent become laughable. She argues that removing race as a way to influence admissions decisions favors those who have other grounds for influencing admissions decisions, like legacy status. Really? Doesn’t she know that minority alumni can use that non-racial legacy status as well?

“As a result of §26, there are now two very different processes through which a Michigan citizen is permitted toinfluence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of theBoard of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by votingfor and supporting Board candidates who share her position. The same options are available to a citizen whowants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized mannerwhen it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.” (at 4)

“Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else.” (at 4-5)

Justice Sotomayor views inability to gain an advantage through race as stacking the deck against minorities:

“While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished throughrace-neutral measures.” (at 6)


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“But neither does it give the majority free rein to erect selective barriers against racial minorities.” says the Wise Latina. Exactly what “selective barrier” did the majority of voters erect against racial minorities? Oh, never mind. She is an idiot. If ever there was a reason to show how affirmative action is actually a quota system for otherwise unqualified people, her inane remarks prove it.

    walls in reply to ZurichMike. | April 22, 2014 at 12:19 pm

    Bingo! We have a winner here!

    Sanddog in reply to ZurichMike. | April 22, 2014 at 12:23 pm

    But apparently, it’s perfectly acceptable for the “minority” to erect selective barriers against the “majority”.

    And by “selective barriers”, I believe the Wise Latina is referring to the process of holding every single individual to the same exact standard… which in proggie land = racism!

      guyjones in reply to Sanddog. | April 22, 2014 at 2:10 pm

      That is the contradiction that is the essence of hypocrisy and abject idiocy which characterizes the “affirmative action” movement — to achieve a truly colorblind society in which candidates are evaluated solely on the basis of merit, and not on the basis of irrelevant characteristics such as ethnicity, race, etc., means disregarding race as a factor in hiring, college admissions, contract awarding, etc. Yet, the Left consistently opposes this notion at every turn.

      Corporations have adopted a slew of “diversity” policies giving preferences in hiring to blacks and other select groups; universities have adopted racial preferences in admissions; government agencies give preferences in awarding contracts to firms owned by select “minority” groups and women. In short, there is nothing holding back “minorities” from succeeding as the beneficiaries of a slew of institutionalized racial preferences situated throughout contemporary American society — except themselves, if they should swallow the Left’s poisonous narrative of perpetual victimization at the hands of the white man and the need for the government’s perpetual paternalistic efforts on their behalf.

      When will the Left acknowledge the naked hypocrisy that undergirds “affirmative action,” aka, race-based discrimination/preferences by another name? Probably, never. It should be axiomatic that the goal of “equality” is quite obviously not achieved by discrimination in ANY form, whether done by malice, or, through the alleged “benevolent” motivations of the racial preferences mongers.

      Here’s a simple solution — treat everyone with a color-blind eye, under a merit-based system! Radical, isn’t it?

      Ah, but, what the Left seeks is not equal opportunity, but, rather, equal results, preordained and influenced by the heavy, bullying hand of Big Government, the perpetual race agitators and self-serving politicians. It’s the same concept that Obama advocates with respect to income-earning — he isn’t interested in the notion of equal opportunity; no, that isn’t good enough, so, he seeks equal results, achieved by punishing the successful and dipping into their pockets, to “spread the wealth” around. Neo-communist libs have a philosophical aversion to meritocracies, individual achievement and success earned by harvesting the fruits of one’s own ambition, savvy, drive and work ethic. Personal responsibility is as anathema to libs as free markets.

    Observer in reply to ZurichMike. | April 22, 2014 at 12:59 pm

    Yes, the “wise latina” apparently thinks that expecting blacks and latinos to achieve the same grades and test scores as whites and Asians is a “barrier” to blacks’ and latinos’ college dreams. Blacks and latinos can’t possibly compete with whites and Asians unless the state puts its mighty thumb on the scale on their behalf.

    Sotomayor is a typical lefty racist.

      platypus in reply to Observer. | April 22, 2014 at 10:05 pm

      Giving preferences means the recipients are not equal which means that the entity giving the preferences is racist to the people to whom they grant the preferences. If I were a racial minority member, I’d be offended big time. I sure wouldn’t want to attend a school that had a built in racist attitude towards me.

      Liberalism is a mental disorder.

    JohnC in reply to ZurichMike. | April 22, 2014 at 5:55 pm

    Sotomayor: “Preferences now, preferences tomorrow, preferences forever!”

What is fascinating is what Sotomayor refers to as “erecting barriers.”

I live in Michigan. The “no” vote campaign was lavishly funded. The media were strongly against it, religious groups opposing it arose (one of the more distasteful moments of my political life was seeing a Jewish community leader cheerfully give up university admission rights that weren’t hers). The MSU basketball coach–with a neat lack of irony–spoke out in favor of a university student body that looked like the state’s population, while in a fifteen percent black state his basketball team was eighty percent black. There were a lot of tv and print ads against it. The “yes” campaign had little funding.

The measure passed with fifty-eight percent. “Minorities” had more than a fair chance to defeat the measure. By “erecting barriers” what Sotomayor means is that it should be easier for certain groups to repeal state constitutional amendments than for the rest of us.

    I’m not going to wait for anybody to support diversity and inclusiveness in the NBA or NFL at the player level.

    Ironically, merit-based admissions was a basic policy view of the Jewish community for many years. The pejorative term “quotas” refers to the quota system used in Europe and the US (at one time) to limit Jewish admissions. This policy caused a breach between the Jewish and Black communities.

“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent….

Neutrality is now an erected barrier. Good grief.

And the solution to this non-existent problem is to give the minority free rein to erect (actual) selective barriers against racial majorities?

Why do I get the feeling that Sotomayor would have no problem with selective barriers being erected against Asian Americans?

    JohnC in reply to BlueOx. | April 22, 2014 at 12:21 pm

    Anything the fails to favor the brown or black man over the white or yellow man is a racist barrier and is setting the nation back to the days of Jim Crow. So saith the wise Latina.

Henry Hawkins | April 22, 2014 at 12:22 pm


Coming up next…

Holder: So what? Ignore this ruling. We won’t stop you.

“Justice Sonia Sotomayor read an impassioned dissent from the bench. She said the initiative put minorities to a burden not faced by other applicants to college.”

People who study hard don’t have a burden.

Henry Hawkins | April 22, 2014 at 12:33 pm

The liberal construction: If a system is (or perceived to be) discriminatorily rigged so that minorities cannot succeed, the only remedy is to discriminatorily rig it so minorities cannot fail, the classic ‘ends justify means’ trope.

    Bruno Lesky in reply to Henry Hawkins. | April 22, 2014 at 6:44 pm

    Add the classic “unequal outcomes” trope. And the classic “social justice” trope. Not to forget the “white privilege” trope. New trope: “Micro aggression.” And the plain old garden variety: “racism.”

The real untold story is how fifty years of minority set-asided and quotas have been squandered.

    JimMtnViewCaUSA in reply to Neo. | April 22, 2014 at 4:03 pm

    Not only squandered…but the people who experienced actual discrimination got no relief, and people who performed actual discrimination (mostly Dems) experienced no penalties.
    Conversely, the people who got favored by quotas did not have to face real, societal discrimination while those who paid the penalty did not participate in the discrimination or even did not live in the US when it happened.

Affirmative Action never has make the grade.

Liberals still don’t understand that institutions do not make the person. The person makes the person.

Equal opportunity for each person is the best an institution can offer. Success or failure. Neither is guaranteed in life no matter how many laws are passed or how much you “rig” the system.

“But neither does [the Constitution] give the majority free rein to erect selective barriers against racial minorities.”


I’m failing to follow Justice Sotomayor’s logic here. How does banning the use of race as a criterion in school admissions serve as a barrier to minority achievement? It would seem a self-evident axiom that the goal of equality is not served by promoting racial discrimination of any kind (which is exactly what a racial “preference” is tantamount to), however the allegedly benevolent intentions of the institutions that support this misguided and hypocritical policy.

Does the Left believe in merit-based achievement and colorblind evaluation of candidates? It would appear not.

    Ragspierre in reply to guyjones. | April 22, 2014 at 3:18 pm

    “I’m failing to follow Justice Sotomayor’s logic here.”

    Good! Count yourself lucky! There is no “logic” to follow.

    Back in the ’60s when many of us fought for a color-blind society, only SOME of us really meant it. Many others were just fighting to flip Jim Crow to their side.

    Henry Hawkins in reply to guyjones. | April 22, 2014 at 3:19 pm

    Sotomayor’s base of reason is that equality must only be measured by results, not by opportunity. Anything that prevents a guaranteed outcome for minorities is therefore a selective barrier.

      NC Mountain Girl in reply to Henry Hawkins. | April 23, 2014 at 11:52 am

      If Sotomayor was honest she’d have to admit the actuqal results from race based admissions are decidedly mixed. Faculty and administrators may feel unduly virtuous when they offer admissions based on affirmative action grounds to a student whose test scores and academic background would not merit the admission but the drop out rates among such students runs high. A friend in California notes that although fewer blacks and Hispanics are now being admitted to the elite state universities the overall graduation rate for minority students is up.

Indeed, Justice Sotomayor, because without racial/ethnic preferences, where would wise Latinas be? N this particular wise Latina realizes that in the absence of such preferences,

The most sordid angle to this unseemly business is the assumption that minorities are incapable of competing on a level playing field.

Indeed, Justice Sotomayor, because without racial/ethnic preferences, where would wise Latinas be? No doubt this particular wise Latina realizes that in the absence of such preferences, she wouldn’t be anywhere close to sitting on the Supreme Court.

The most sordid angle to this unseemly business is the assumption that minorities are incapable of competing on a level playing field.

(Sorry for the earlier incomplete post.)

    janitor in reply to SukieTawdry. | April 22, 2014 at 4:53 pm

    Your point merits repeating. (“Wise Latina” in quotes, however.)

    …in the absence of such preferences, she wouldn’t be anywhere close to sitting on the Supreme Court.

    …in the absence of such preferences, she wouldn’t be anywhere close to sitting on the Supreme Court.

    …in the absence of such preferences, she wouldn’t be anywhere close to sitting on the Supreme Court…

…the assumption that minorities are incapable of competing on a level playing field.

And that assumption is what reveals them nothing but a despicable bunch of racist pigs. IMHO

JimMtnViewCaUSA | April 22, 2014 at 4:06 pm

Now that the eviiil Republic of South Africa is no more … which nation is obsessed with the racial makeup of its citizens and asks for racial membership on many gov’t forms, college apps, mortgage apps, etc., etc.?

Thinking … thinking …

Only in the twisted mind of a leftist can guaranteeing the absence of obstacles be a ‘unique’ obstacle.

Can someone square the reasoning here with Prop 8 in California? As near as I can tell, the only real difference in these cases is that the Michigan AG chose to support the will of the voters and California did not.

Remember D of (racial) Just-us czar Holder has declared that affirmative action is forever…

I am an immigrant of Hispanic origin, born and raised in a Spanish speaking country. Coincidentally, I happen to carry around a pretty dark skin, which I got from my black mother. So you could say I am more than your average minority person.

That said, I applaud the decision.

I want to add that I deeply despise opinions like that of Justice Sonia Sotomayor.

We all have been endowed by our creator with the right to “Life, Liberty and the pursuit of Happiness.” But we have also been given free will. Each and every one of us has the choice to actively pursue happiness, or sit and wait for others to do it.
It is not the government’s right to take from someone who put his/her best efforts forward, in order to favor the lazy and indolent.

Also, I take great offense in the idea that Hispanics, or Blacks need special treatment, that we cannot succeed without Big Daddy Gubmint tipping the scales for us. That’s bull.
We are smart. We can work hard, and in fact we do. We can succeed on our own merit, and in fact we do. There’s plenty of examples out there, and anyone trying to deny it is a despicably racist pig.
But the liberals can’t stop spinning the truth. They focus on the worst of us. They parade our failures, but hide our successes to create and promote a false, victimhood narrative.
Of course there’s shameless opportunistic parasites among us. But aren’t they everywhere?

    platypus in reply to Exiliado. | April 22, 2014 at 10:18 pm

    One little addendum, if you please. What do these brilliant idiots thinks the rest of the world is doing? Do they seriously believe the rest of the world is still in grass huts and cooking over open campfires?

    These people are such ego-maniacal slime. So pretentious.

This won’t matter. Michigan colleges will do what California colleges have done: ignore the law. California colleges have moved to “holistic” admissions policies, where politically correct bias can be hidden in considerations of the candidate’s alleged history.

Love how the Left treats minorities as if they lack the brains and ability to achieve on their own without the intervention of Big Gov.. This is why they despise people like Clarence Thomas and Dr. Ben Carson who have accomplished great things.

Sotomayor dissent: Removal of “race-sensitive” preferences equals … “forcing the minority alone to surmount unique obstacles”,35835/?utm_source=Facebook&utm_medium=SocialMarketing&utm_campaign=LinkPreview:1:Default

Not a huge fan of Lawrence Tribe but, courtesy of the AOSHQ sidebar link:

How about appeals Judge Sonia Sotomayor? “Bluntly put,” Tribe said, “she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the” conservative wing of the court.

MouseTheLuckyDog | April 22, 2014 at 11:33 pm

Seems to me many in the Asian and Indian communities have no problems with the barriers.

Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone

And so said a beneficiary of Obama’s efforts to pack women onto the Court. (Are they qualified? Well, d’uh, they’re women, ain’t they?)

It seems to me that she’s usually considered the current Court’s most blatant racist, but not as often realized that she’s also a vicious sexist. Here, she’s pretending that she’s forgotten all about that. Maybe she’s just not very sharp.