This past term, the Court once again confronted the issue of race-conscious admissions policies in higher education (popularly referred to as “affirmative action”). In Schuette v. BAMN, the Court held that voters of a state may prohibit such programs and policies by way of a state constitutional amendment without running afoul of the Fourteenth Amendment’s Equal Protection Clause. It is important to underscore that this case did not address the constitutionality or the merits of affirmative action itself. Last term in Fisher v. University of Texas at Austin the Court reaffirmed that race-conscious admissions policies may be constitutional so long as they are narrowly tailored to the compelling state interest of promoting classroom diversity. Rather, the question before the Court in Schuette concerns whether, and in what manner, voters may choose to prohibit the consideration of such racial preferences.
In 2006, the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause (Gratz v. Bollinger) but that the law school admission plan’s more limited use did not (Grutter v. Bollinger). As a result, Michigan voters subsequently adopted Proposal 2 (now Art. I, § 26, of the State Constitution), which prohibits the use of race-based preferences as part of the admissions process for state universities. The Sixth Circuit then struck down that provision, concluding that the proposal violated the political-process doctrine announced in a 1982 busing case called Washington v. Seattle School District No. 1. That doctrine bars state initiatives that have the “practical effect” of removing “the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests.” Relying on that case, the Sixth Circuit construed Michigan’s ban of affirmative action by constitutional amendment as violating minorities’ ability to participate fully in the political process by removing decisionmaking authority on the issue of race-conscious admissions from the boards of university regents and entrenching it in the state constitution.
In Schuette v. BAMN, the Court reversed the Sixth Circuit, limiting the political-process doctrine to those cases in which the challenged state action has the serious risk, if not purpose, of causing specific injuries on account of race. Justice Kennedy delivered the plurality opinion of the Court, joined by Chief Justice Roberts and Justice Alito.
In limiting the political-process doctrine, Justice Kennedy reasoned that the language of the Seattle decision went far beyond what was necessary to reach its conclusion. According to Justice Kennedy, if Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, it raises serious equal-protection concerns. For any attempt to identify any one “interest” as a distinctly “minority interest,” would require the Court to rely upon the stereotyping assumption that all individuals of the same race think alike. Furthermore, unlike in Seattle and its predecessors, the plurality could identify no specific injury inflicted by Proposal 2. Thus, the Court reframed the question here not as how to address or prevent injury caused on account of race but whether voters may choose to abolish a policy of race-based preferences in admissions. For the plurality, this was not a denial of political process but an exercise of it: by approving Proposal 2 and thereby adding § 26 to their State Constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns.
Justice Scalia, joined by Justice Thomas, concurred only in the judgment, arguing that the political-process doctrine should not be distinguished but overturned wholesale. Justice Breyer concurred separately, insisting that the ballot box, not the courts, is the proper forum for deciding whether to implement race-conscious admissions programs—programs that the Constitution permits but does not require.
Justice Sotomayor dissented, joined by Justice Ginsberg. For Justice Sotomayor, the Constitution’s guaranties of equal protection and nondiscrimination are founded upon the right of all citizens to participate meaningfully and equally in self-government—the right of equal access to the political process. For Justice Sotomayor, § 26 undermines that equal access: “A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” Accordingly, Justice Sotomayor would have applied the political-process doctrine to invalidate Art. I, § 26 of the Michigan Constitution. In her view, the plurality has eviscerated a vital aspect of equal protection, for equal protection of the laws is meaningless if people are not equally able to change those laws.
The effect of the Court’s decision in Schuette is to allow states to prohibit race-conscious admissions policies by constitutional amendment, which five states, including Michigan, already have done (the others are Arizona, California, Nebraska, and Oklahoma). This leaves the decision about whether to adopt or prohibit such policies in the hands of state voters, subject to their states’ respective legislative and ballot-initiative processes.