“Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
—Justice Anthony Kennedy
“The majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration.”
—Justice Sonia Sotomayor
Earlier this week the United States Supreme Court upheld a ban on the use of racial preferences in admissions to state universities and the awarding of state contracts in Michigan. The ban was approved by Michigan voters and enacted as a provision of the Michigan constitution. For all the attention rightfully given to the case, it is, perhaps, important to examine what it does not stand for before considering what it does.
The Supreme Court has decided numerous affirmative action cases over the past several decades, each time weighing the circumstances under which policies are permissible and when the use of racial preferences is appropriate. But this case was not about the constitutionality of affirmative action. It did not involve a university admissions policy or a suit brought by a student who was refused entry. This was, rather, a case about whether voters can decide not to use affirmative action through an initiative at the ballot box.
The Justices ultimately decided that they could, but even there the Justices could not come to any agreement on the reasoning behind the decision. History will mark this case as being a 6-2 decision but any reading of the 108 pages that the Justices authored will show that this was really a 3-2-1-2 case with Justice Kagan abstaining because she had worked on the case in her previous role as Solicitor General of the United States.
The bottom line is this- assuming that they meet guidelines previously set forth by the U.S. Supreme Court, existing admissions policies that contain race as a factor are unaffected by the decision in Schuette v. BAMN, but it is also now clear that voters may chose, by means of a ballot initiative, to prohibit their states from using race as a factor in admission decisions for state-run universities.
Justice Kennedy wrote the plurality decision and was joined by Justice Alito and Chief Justice Roberts. In his decision, Justice Kennedy said that the Court should uphold the vote in Michigan because that vote was a valid exercise of the most basic function of our republic- voters deciding an issue. He said, “Our constitutional system embraces, too, the right of citizens to debate, so they can learn and decide, and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom even greater and more secure.”
Justice Roberts wrote a concurring opinion that is only two paragraphs long and makes no legal arguments. Instead, he used it to address a portion of the dissent that he thought called the motives of the majority into question. He concluded by stating, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
Justice Scalia wrote a separate opinion, joined by Justice Thomas in which they also conclude that the vote in Michigan should be upheld, but for different reasons. Justice Scalia called the present situation a “jurisprudential twilight zone” in which the Court was being asked whether the Equal Protection Clause could prohibit the very thing it demands- that one group not be given preferential treatment over another. Justices Scalia and Thomas opined that the Court should abandon earlier cases that they believe were unwisely decided and replace them with a doctrine that holds that a government action is discriminatory only when it is found to have a discriminatory intent.
Justice Breyer was the sole member of the Court’s so-called “liberal wing” to vote to uphold the Michigan action. He stated simply that he believes that the Constitution “permits, though it does not require” the use of race in admissions policies but he also concluded that, “the Constitution forsees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”
The dissenting votes came from Justice Sotomayor, who was joined by Justice Ginsburg. Sotomayor’s dissent was longer than the majority opinions of Justices Kennedy, Roberts, Scalia and Breyer combined. Ginsburg and Sotomayor would have struck down the Michigan vote on the basis of the fact that it was targeted solely at minority groups. Writing about her own educational experiences, Justice Sotomayor cast the Michigan action as the latest in a string of efforts to marginalize minorities.
Through the legal basis may be unclear, what is clear is that voters in individual states may now decide whether to allow state universities to use race as a factor in admissions. You can read the full decision online at www.superemecourt.gov.
David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Probate/Juvenile Court and a former Assistant Prosecuting Attorney.