In a recent U.S. Supreme Court ruling, the court upheld a controversial ban on the use of affirmative action in public education, employment, and contracts in the state of Michigan. For details on the decision and whether it affects your business, read on. 
Background
In 2003, two U.S. Supreme Court decisions addressed―and in one decision upheld―the use of racial preference in higher education admissions at the University of Michigan. Michigan voters responded to the polarizing issue in 2006 by amending the state constitution to prohibit discrimination or preferential treatment in public education, government contracting, and public employment. Proposal 2, as the measure was called, was approved by 58 percent of the state’s voters―and then immediately challenged in federal court the following day.
Proposal 2 was struck down by the 6th Circuit in 2012, creating a split from the 9th Circuit’s prior decision to uphold California’s similar statewide ban on affirmative action. The ruling also created uncertainty in the six other states with similar affirmative action bans: Arizona, Florida, Oklahoma, Nebraska, New Hampshire, and Washington.
High court settles the uncertainty
Through five separate opinions amassing over 100 pages of text, the Supreme Court addressed this uncertainty in a 6-2 decision upholding the Michigan ban. However, in doing so, the majority was careful to limit the scope of the question that was asked and addressed.
The majority opinion, written by Justice Anthony Kennedy, didn’t discuss the merits or legality of affirmative action policies. Rather, the decision merely addressed whether Michigan voters had the power to pass Proposal 2.
Specifically, Justice Kennedy wrote that the case wasn’t about “how the debate about racial preferences should be resolved” but “about who may resolve it.” Justice Kennedy went on to note that there is no constitutional or judiciary authority to set aside the Michigan law and that it would be “demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Justice Sonia Sotomayor vehemently disagreed in her lengthy 57-page dissent, arguing that the Michigan law changes the rules of the political process in a manner disadvantageous to racial minorities. Her dissent called for further open discussion of affirmative action policies and race discrimination, but this case wouldn’t be the forum for that dialogue. Schuette v. Coalition to Defend Affirmative Action (572 U.S. ___ (2014)).
What does the opinion mean for employers?
At the moment, not much, although we may now see additional states propose similar bans on the use of racial preference in education, contracts, and employment.
As noted, the majority took a very narrow approach to resolving the split among federal courts without digging into the details of affirmative action in general. Additionally, although Michigan’s Proposal 2 applies not only to college admissions but also to public employment and contracting, the labor-related provisions of the law were never challenged in this case. So while the state affirmative action ban still holds and extends to public employment and contractors, the decision has limited applicability to the employment context.
Finally, note that affirmative action programs in the employment context generally operate differently than those in college admissions because employers focus more on ensuring a diverse applicant pool for hiring and promotion than on filling numerical quotas based on minority characteristics. For example, federal contractor regulations specifically prohibit the use of quotas and don’t allow diversity goals to supersede merit selection principles (a chief concern with the more controversial educational admissions processes).
Holly K. Jones, J.D., is a Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.