New York Times
Court Backs Michigan on Affirmative Action
By ADAM LIPTAK APRIL 22, 2014
WASHINGTON — In a fractured decision that revealed deep divisions
over what role the judiciary should play in protecting racial and ethnic
minorities, the Supreme Court on Tuesday upheld a Michigan constitutional
amendment that bans affirmative action in admissions to the state’s public
universities.
The 6-to-2 ruling effectively endorsed similar measures in seven other states.
It may also encourage more states to enact measures banning the use of race in
admissions or to consider race-neutral alternatives to ensure diversity.
States that forbid affirmative action in higher education, like Florida and
California, as well as Michigan, have seen a significant drop in the enrollment
of black and Hispanic students in their most selective colleges and
universities.
In five separate opinions spanning more than 100 pages, the justices set out
starkly conflicting views. The justices in the majority, with varying degrees of
vehemence, said that policies affecting minorities that do not involve
intentional discrimination should be decided at the ballot box rather than in
the courtroom.
But Justice Sonia Sotomayor, in the longest, most passionate and most
significant dissent of her career, said the Constitution required special
vigilance in light of the history of slavery, Jim Crow and “recent examples of
discriminatory changes to state voting laws.”
Her opinion, longer than the four other opinions combined, appeared to reflect
her own experiences with affirmative action at Princeton and Yale Law School. “I
had been admitted to the Ivy League through a special door,” she wrote in her
best-selling memoir, “My Beloved World.” For years, she wrote, “I lived the
day-to-day reality of affirmative action.”
In contrast to Justice Sotomayor’s outraged dissent, Justice Anthony M.
Kennedy’s controlling opinion for three justices took pains to say that the
decision was a modest one.
“This case is not about how the debate about racial preferences should be
resolved,” he wrote, in an opinion joined by Chief Justice John G. Roberts Jr.
and Justice Samuel A. Alito Jr. “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.” His announcement of the decision from the bench
was businesslike.
Signaling deep displeasure, Justice Sotomayor summarized her dissent from the
bench, an unusual move that happens perhaps three times a term. She said the
initiative put minorities to a burden not faced by other college applicants.
Athletes, children of alumni and students from underrepresented parts of the
state, she said, remained free to try to persuade university officials to give
their applications special weight. “The one and only policy a Michigan citizen
may not seek through this long-established process,” she wrote, “is a
race-sensitive admissions policy.” That difference, she said, violates the
Constitution’s equal protection clause.
“The Constitution does not protect racial minorities from political defeat,” she
wrote. “But neither does it give the majority free rein to erect selective
barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the
dissent.
Justice Sotomayor seemed to mock one of Chief Justice Roberts’s most memorable
lines. In a 2007 decision that limited the use of race to achieve integration in
public school systems, he wrote, “The way to stop discrimination on the basis of
race is to stop discriminating on the basis of race.”
Justice Sotomayor recast the line. “The way to stop discrimination on the basis
of race,” she wrote, “is to speak openly and candidly on the subject of race,
and to apply the Constitution with eyes open to the unfortunate effects of
centuries of racial discrimination.”
Chief Justice Roberts responded in a brief concurrence, saying that affirmative
action, and the stigma that he said could accompany it, may do more harm than
good. “People can disagree in good faith on this issue,” he added, “but it
similarly does more harm than good to question the openness and candor of those
on either side of the debate.”
In earlier cases, including one from last June challenging the admissions
policies of the University of Texas, the court has said that race-conscious
selection can be constitutionally permissible in states that wish to use them.
In a concurrence, Justice Antonin Scalia, joined by Justice Clarence Thomas,
said those decisions were wrong, and he suggested that they were in peril. He
added that the question in Tuesday’s case, Schuette v. Coalition to Defend
Affirmative Action, No. 12-682, was laughably easy.
“Even taking this court’s sorry line of race-based admissions cases as a given,”
he wrote, “I find the question presented only slightly less strange: Does the
equal protection clause forbid a state from banning a practice that the clause
barely — and only provisionally — permits?”
He added that courts should resist involving judges “in the dirty business of
dividing the nation into racial blocs.”
“That task is as difficult as it is unappealing,” Justice Scalia said, giving an
example: “Does a half-Latin, half-American Indian have Latino interests,
American-Indian interests, both, half of both?”
The most surprising opinion came from Justice Stephen G. Breyer, who abandoned
his usual liberal allies to vote with the majority, although he did not adopt
the majority’s reasoning. The Constitution, he said, permits but does not
require states to use race-conscious admissions for educational diversity.
In general, he said, “the Constitution foresees the ballot box, not the courts,
as the normal instrument for resolving differences and debates about the merits
of these programs.”
Justice Elena Kagan recused herself, presumably because she had worked on the
case as United States solicitor general.
The Michigan initiative, known as Proposal 2, was a response to Grutter v.
Bollinger, a 2003 Supreme Court decision that upheld the use of race as one
factor among many in law school admissions to ensure educational diversity.
Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the
State Constitution to prohibit discrimination or preferential treatment in
public education, government contracting and public employment. Groups favoring
affirmative action sued to block the part of the law concerning higher
education.
In 2012, the United States Court of Appeals for the Sixth Circuit, in
Cincinnati, ruled by a vote of 8 to 7 that the initiative violated the federal
Constitution’s equal protection clause. The appeals court majority said the
problem with the law was that it restructured the state’s political process by
making it harder for disfavored minorities to press for change.
Justice Sotomayor agreed, saying citizens seeking to have the state’s public
universities adopt race-conscious admissions plans had to “undertake the
daunting task of amending the State Constitution.”
Justice Kennedy said that was as it should be.
“Here Michigan voters acted in concert and statewide to seek consensus and adopt
a policy on a difficult subject against a historical background of race in
America that has been a source of tragedy and persisting injustice,” he wrote.
“That history demands that we continue to learn, to listen and to remain open to
new approaches if we are to aspire always to a constitutional order in which all
persons are treated with fairness and equal dignity.”
A version of this article appears in print on April 23, 2014, on page A1 of the
New York edition with the
headline: Justices Back Ban on Race as Factor in College Entry.