Source: Detroit News

The U.S. Supreme Court ruling that voters can ban the use of race in college admissions is a setback for affirmative action, and showcases divisions among the justices regarding racial inequality in America.

In a 6-2 decision, the nation’s highest court ruled Tuesday that Michigan’s 2006 law banning its public universities from considering a student’s race in admissions is constitutional. That change was up to the voters, the ruling said, over one justice’s impassioned dissent that accused the court of simply wanting to wish away inequality.

The ruling in Schuette v. Coalition to Defend Affirmative Action bolsters similar voter-approved initiatives banning affirmative action in education in seven other states, including California and Washington. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies.

“Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power,” Justice Anthony Kennedy wrote for the majority. “(They) used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.”

The court did not address whether race preferences are permissible — which the court upheld under the previous U-M Grutter ruling — but only whether states can restrict their use.

Chief Justice John Roberts and justices Stephen Breyer, Samuel Alito, Antonin Scalia and Clarence Thomas agreed with Kennedy. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. Justice Elena Kagan did not take part in the case, presumably because of previous related work while serving in the Justice Department.

In a separate opinion siding with Kennedy, Scalia said Michigan residents favored a colorblind constitution and “it would be shameful for us to stand in their way.”

Sotomayor’s 58-page dissent was the longest section of the court’s 108-page ruling and included charts and graphics on the decline of black student enrollment at U-M, even as the number of minority college-age students has increased. She said upholding the ban forever stacks the deck against racial minorities in Michigan, and she took issue with her fellow justices’ belief in race-blind admissions.

“It ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America,” Sotomayor wrote.

Tuesday’s decision reversed an 8-7 ruling from the U.S. 6th Circuit in 2013 that had overturned Michigan’s 2006 state constitutional amendment. The measure had been approved by 58 percent of state voters.

Breyer, who broke with fellow liberals Sotomayor and Ginsburg in siding with the majority, wrote in a concurring opinion that he continues to believe the Constitution permits — but doesn’t require — the use of race-conscious admissions. “But the Constitution also foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs,” he wrote.

University of Notre Dame law professor Jennifer Mason McAward said the five written opinions point “to a much more nuanced and heated debate among the justices regarding the permissibility and wisdom of racial preferences in general.”

The outcome of the Michigan case not only affects other states with bans, but also may inspire future ballot initiatives. Besides California and Washington, five other states — Arizona, Florida, Nebraska, New Hampshire and Oklahoma — all have bans similar to Michigan’s Proposal 2.

Tuesday’s ruling was the second time in the last decade that the Supreme Court made the final call on the use of affirmative action in higher education in Michigan.

The debate started in the mid-1990s, when Southgate resident Jennifer Gratz was waitlisted at U-M, then rejected for admission. She filed a lawsuit, arguing that U-M was unfairly giving an advantage to minority candidates by awarding them points in the undergraduate admissions process.

The Supreme Court declared that policy unconstitutional in 2003. But in a companion case, the justices upheld the U-M law school’s admission policy, which considered race more “holistically.”

Gratz was a driving force behind the Michigan Civil Rights Initiative, which voters approved in 2006 to ban affirmative action in public institutions. The portion of the law that banned the consideration of race in higher education was immediately challenged.

Gratz hailed Tuesday’s decision as a long-awaited triumph.

“It’s a great victory,” she said. “It’s a personal victory, but more a victory for the voters of Michigan and the issue of equality. … It reaffirms what I believed all along, that equality is right.”

Ward Connerly, another activist who opposes affirmative action, said the ruling effectively settles the issue.

“This should bring a degree of finality to the issue,” said Connerly, who heads the American Civil Rights Institute, a California think tank that advocates moving beyond race. “People should not have to resort to ballot initiatives to answer the question of whether the government should classify us and treat us differently based on skin color or ethnic background. … The next step is to try to get people to realize that this is the law of the land and they should accept it.”

But Detroit attorney George Washington, who represents the pro-affirmative action group By Any Means Necessary, said the battle will continue, starting Thursday. That’s when a rally will be held at U-M, demanding officials drop the use of ACT and SAT scores in the admissions process because they work against minority candidates.

“The battle,” Washington said, “definitely goes on.”