HR Management & Compliance

High court upholds Michigan’s ban on affirmative action in higher education

Michigan voters’ right to prohibit preferential race-based admissions programs in the state’s university system was upheld today by the U.S. Supreme Court in Schuette v. The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary (BAMN), 572 U.S. ___ (2014).

In the 6-2 opinion written by Justice Anthony Kennedy, the Court upheld Proposition 2, which was approved by popular vote in Michigan. Proposition 2 amended the Michigan Constitution to prohibit race-based admissions preferences in the state’s university system.

The Supreme Court’s decision reversed an earlier ruling by the U.S. 6th Circuit Court of Appeals. Justice Ruth Bader Ginsburg was the sole dissenter. Justice Elena Kagan recused herself, presumably because she participated in the case when she was U.S. solicitor general.

What was the question?

The question before the Supreme Court was whether Proposition 2 was invalid under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Supreme Court considered only the prohibition on race-conscious admissions programs that take into account a student’s race solely to obtain the educational benefits of a diverse student body. The provisions of Proposition 2 that apply to public employment and contracting were not at issue in the case.

Proposition 2 prohibits the University of Michigan and other state colleges, universities, community colleges, and school districts from discriminating against or granting preferential treatment in the admissions process to an individual or group on the basis of race, sex, color, ethnicity, or national origin.

What the Court said

The Court noted that unlike its 2013 decision in Fisher v. University of Texas, the Schuette case was not about the constitutionality or merits of race-conscious admissions policies in higher education. Instead, the case concerned whether voters may determine whether a race-­based preference policy should be continued.

In holding that voters are empowered to decide whether race-based preferences should be continued, the Court noted, “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.” According to the Court, although the issue of race is sensitive and often shaded with “rancor,” “that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

Impact of the Court’s decision

While the Court’s decision was narrowly tailored to apply only to the constitutionality of a voter-approved amendment to the Michigan Constitution, it adds to the Court’s recent pattern of upholding prohibitions on race-based admissions programs in the university setting. Although the decision will not immediately affect employers, it may signal a changing tide in the judiciary regarding race-based programs such as affirmative action in federal contracting.

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