U.S. Supreme Court Upholds Prohibition on Racial Preferences

Race-based admissions in higher education is a hot button issue, and I’ve written about this subject in the past here and here. Colleges and universities continue to struggle as they balance their desire for a diverse student body with the necessity that every student be given an equal opportunity for admission regardless of their race. There are no clearly drawn lines as to how race can be used in the admissions process, and colleges and universities are left to sort through this gray area on their own.

Last month, in Schuette v. Coalition to Defend Affirmative Action, et al, the U.S. Supreme Court once again faced a case concerning the issue of race-based preferences in college admissions. This case, however, is different than most. In 2006, Michigan voters adopted what is known as Proposal 2, which amended the state constitution to prohibit the use of race-based preferences in the admissions process for state-funded colleges and universities. The proposal was challenged by numerous plaintiffs, and in 2008, a federal district court granted summary judgment to the State of Michigan and upheld the proposal. The Sixth Circuit Court of Appeals reversed the district court, finding that Proposal 2 violated the equal protection rights of minorities.

The U.S. Supreme Court reversed the Sixth Circuit Court of Appeals, finding that Proposal 2 did not violate the U.S. Constitution or Court precedent. Justice Kennedy, who wrote the plurality opinion, began by explaining that this case is not about the constitutionality or merits of race-based admissions policies in higher education. The consideration of race in admissions is permissible as long as certain conditions are met. The question presented to the Court was whether, and in what manner, the voters of a State can choose to prohibit the consideration of race in college admissions. In upholding Proposal 2, Justice Kennedy addressed the Court’s earlier opinion in Washington v. Seattle School District, No. 1, 458 U.S. 457 (1982), the case most heavily relied upon by the Sixth Circuit. In Seattle, the city’s school board adopted a mandatory busing program to alleviate racial isolation in certain schools. In response, the voters passed a state-wide initiative that prohibited mandatory busing programs. The U.S. Supreme Court invalidated the initiative, finding that it removed the authority to address a problem from the existing decision-making body, which was the school board, in such a way as to burden minority interests. In order to seek relief from racially isolated schools, minorities were forced to reach out to the state legislature or the voters rather than the school board, which made the task much more difficult, if not impossible. The initiative in Seattle had the risk, if not the actual intent, of causing harm to certain individuals on account of their race. This “political process” theory, as it’s known, provides that it is unconstitutional for voters to change the way public policies are developed in order to hamper the development of policies that favor racial minorities.

In Schuette, the Court rejected the political process argument, essentially overruling part of the Seattle case. Justice Kennedy wrote that the political process theory was not essential to the result in Seattle, and that the theory wrongly assumed that racial minorities share the same views on public policy. Rather, voters should be allowed to speak about, debate, and learn about issues such as racial preferences in college admissions, and should be able to act through a lawful electoral process to shape the policies of their local government. It’s important to note once again that this case does not disallow racial preferences in college admissions. It simply allows the issue to be determined by the voters.

Justice Kennedy’s opinion is only a plurality, as it was fully supported by only Chief Justice Roberts and Justice Alito. It is the controlling opinion in this case however, as the end result was supported by Justices Thomas, Scalia, and Breyer, though on other grounds. Justices Sotomayor and Ginsburg dissented.

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