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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