Supreme Court upholds Michigan affirmative action ban

The Supreme Court on Tuesday ruled by a 6-2 vote that Michigan voters had a right to ban affirmative action in their state via a ballot initiative.

In the controlling opinion, Supreme Court Justice Anthony Kennedy stressed that the case was "not about the constitutionality, or the merits, of race-conscious admissions policies in higher education." Instead, the case was about "whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions."

The case, referred to Schuette v. Coalition to Defend Affirmative Action, reviewed a 2006 Michigan ballot initiative that amended the state Constitution to ban the consideration of race or sex in public education, government contracting and public employment.

In 2012, the Sixth Circuit Court of Appeals said the Michigan initiative violated the U.S. Constitution's equal protection clause. Because it came in the form of a constitutional amendment, the appeals court said the new rule "reordered the political process" in a way that put special burdens on racial minorities.

"Rather than undoing an act of popularly elected officials by simply repealing the policies they created, Michigan voters repealed the admissions policies that university officials created and took the additional step of permanently removing the officials' power to reinstate them," the appeals court wrote. "Had those favoring elimination of all race-conscious admissions policies successfully lobbied the universities' admissions units, just as racial minorities did to have these policies adopted in the first place, there would be no equal protection concern."

However, Kennedy argued that the court of appeals' logic was "inconsistent with the underlying premises of a responsible, functioning democracy."

"One of those premises is that a democracy has the capacity--and the duty--to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices," he wrote. "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

In a dissenting opinion, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) argued that by amending the state Constitution, "the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities."

The guarantee of equal protection under the law is typically understood to prohibit intentional discrimination, but it also secures the right of equal participation in government, the justices said.

"That right is the bedrock of our democracy, for it preserves all other rights," Sotomayor wrote. "Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. This time, although it allowed the minority access to the political process, 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 Elena Kagan recused herself from the case.

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