The U.S. Supreme Court Tuesday dealt a blow to affirmative action, upholding a voter-approved ban on racial preferences at Michigan's state-run universities in a decision that may spur similar initiatives elsewhere.
On a 6-2 vote, the court rejected a challenge to the ban, although the justices were divided as to the legal rationale. The court made it clear it was not deciding the larger and divisive question of whether affirmative action admission policies can be lawful.
Tuesday's ruling involved different legal issues from those in past affirmative action disputes. Rather than deciding whether universities violate the rights of white students by using affirmative action programs, the court considered whether state bans on racial preferences amount to discrimination against minorities.
The majority opinion rejected the argument made by civil right groups that the 2006 Michigan constitutional amendment that passed as a ballot initiative to ban the practice had imposed burdens on racial minorities in violation of the U.S. Constitution's guarantee of equal protection.
In November 2012, a divided 6th U.S. Circuit Court of Appeals in Cincinnati ruled Michigan's ban unconstitutional, prompting the state to appeal to the Supreme Court.
Affirmative action programs, first advocated in the 1960s to combat discrimination against racial minorities, have faced a backlash from conservatives in recent decades. Court rulings and action by states have chipped away at the practice.
A federal appeals court said the Michigan measure put racial minorities at a unique disadvantage. The 8-7 decision said minorities are barred from asking universities for special preferences — something athletes, band members and children of alumni could still do.
Proposal 2, as the initiative was known, bars preferences on the basis of gender or race in public education, contracting and employment. The university admissions aspect of the law was the only part before the Supreme Court.
Proposal 2 was spearheaded by Jennifer Gratz, whose reverse-discrimination lawsuit against Michigan became one of the two 2003 Supreme Court cases. Michigan voters approved the constitutional amendment, 58% to 42%. That measure stated public colleges and universities "shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin."
The Supreme Court, however, has grown more skeptical of affirmative action since upholding it in 2003. That's largely because of Justice Sandra Day O'Connor's 2006 retirement and the appointment of Justice Samuel Alito to fill her seat.
Michigan is one of 10 states where race-conscious admissions are barred at public institutions, by ballot initiative or other government action.
Black enrollment is down about 30 percent at the University of Michigan's undergraduate and law schools since the measure took effect, according to the university's figures.
The case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, No. 12-682.
Three-way split on the court
On Tuesday, the justices in the majority were divided three ways.
Justice Anthony Kennedy wrote an opinion, joined by Chief Justice John Roberts and Justice Alito, saying that the appeals court that threw out the law did not have the authority to do so.
"This case is not about how the debate about racial preferences should be resolved," Kennedy wrote. "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."
The dissenting votes came from two of the liberal members of the court, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg.
Sotomayor read parts of the dissent from the bench. She wrote that the decision was a blow to "historically marginalized groups, which rely on the federal courts to protect their constitutional rights."
The court had undermined its own precedents, which state that the majority cannot suppress minorities' right to participate in the political process, Sotomayor said.
Justice Antonin Scalia wrote a separate opinion, joined by Justice Clarence Thomas, in which he said that challenges to laws that rest on equal protection claims must show that the law reflects a discriminatory purpose. The Michigan law did not, he said.
Justice Stephen Breyer was the only member of the liberal wing of the court to join the majority. He wrote that the ban was constitutional because the prohibition moved the decision on whether to adopt race-conscious admissions policies from university officials to the voters.
Justice Elena Kagan did not take part, presumably because she worked on the case while in her previous position as United States solicitor general.
'The same playing field'
Supporters of affirmative action condemned the ruling.
Mark Rosenbaum, the American Civil Liberties Union lawyer who argued before the Supreme Court, said the ban "unfairly keeps students from asking universities to consider race as one factor in admissions, but allows consideration of factors like legacy status, athletic achievement and geography."
"This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students. Today, the Supreme Court said they are not," Rosenbaum said.
University policies that took race into account could be more vulnerable to legal challenges in the future. But the court did not strike the policy down and instead sent the case back to a lower court for reconsideration.
Michigan state officials did not immediately comment on the ruling.
Reuters, Bloomberg and David G. Savage, Tribune Washington BureauCopyright © 2015, The Baltimore Sun