On a 6 to 2 vote, the Supreme Court rejected a challenge to a voter-approved Michigan law that bans the practice of affirmative action for college admissions. (Reuters)

On a 6 to 2 vote, the Supreme Court rejected a challenge to a voter-approved Michigan law that bans the practice of affirmative action for college admissions. (Reuters)

The Supreme Court on Tuesday made clear that states are free to prohibit the use of racial considerations in university admissions, upholding Michigan’s constitutional amendment banning affirmative action.

By a vote of 6 to 2, the court concluded that it was not up to judges to overturn the 2006 decision by Michigan voters to bar consideration of race when deciding who gets into the state’s universities.

The ruling could encourage other states to join the handful that have such prohibitions, including California and Florida. Higher-education officials have warned that those states have seen a decline in the number of minorities admitted to their flagship universities.

The decision further illustrates the court’s skepticism about race-conscious government programs. In effect, the ruling says that universities may still employ the limited consideration of race authorized in previous Supreme Court rulings. But it also said that voters and legislators also have the right to curtail such plans. That it took five separate opinions totaling 102 pages written over six months to reach that result is a sign of how divided the court remains on the issue.

Justice Anthony M. Kennedy wrote the main opinion and said there was no reason for judicial intervention in state decisions that do not target minority groups.

Read the court's decision

Schuette v. Coalition to Defend Affirmative Action The Supreme Court says in a 6-2 ruling that Michigan voters had the right to change their constitution to prohibit public universities from considering race in admissions decisions

“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy wrote in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “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.”

Justice Sonia Sotomayor, in the most powerful and notable dissent of her 41 / 2 -year tenure on the court, blasted the majority and took particular aim at Roberts and the court’s conservatives, who she said attempt to “wish away” evidence of the nation’s racial inequality.

“Today’s decision eviscerates an important strand of our equal protection jurisprudence,” Sotomayor wrote in her 58-page dissenting opinion, joined by Justice Ruth Bader Ginsburg. Sotomayor, who this year said she was not fond of justices reading dissents from the bench to emphasize disagreement, overcame her reluctance to do just that.

“For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government,” Sotomayor wrote.

Justices Antonin Scalia and Clarence Thomas, who oppose racial preferences, agreed with the outcome but not Kennedy’s rationale.

Justice Stephen G. Breyer, normally part of the liberal bloc, also ruled for Michigan but on different grounds. If voters or their representatives have the right to adopt race-conscious policies, he said, so must they have the right to decide not to.

Justice Elena Kagan recused herself from the case, presumably because she had worked on the case while solicitor general.

Skeptical justices

Tuesday’s decision was not a surprise. At oral arguments in October, a majority of the justices had been skeptical of the appeals court’s rationale striking down Michigan’s ban and questioned how requiring the admission process to be colorblind could violate the Constitution’s guarantee of equal protection.

Moreover, it follows decisions by the Roberts court that limited the use of race in school assignments and ordered lower courts to take a closer look at the use of race in admission decisions at the University of Texas.

While other courts had upheld affirmative-action bans, the U.S. Court of Appeals for the 6th Circuit narrowly disapproved of Michigan’s constitutional amendment, which was approved by 58 percent of the state’s voters.

Relying on Supreme Court decisions from the 1960s and early 1980s, the appeals-court majority said the amendment restructured the political process to make it harder for minorities to press their concerns.

But Kennedy said the appeals court had read those decisions too broadly. The policies struck down in the court’s previous cases were government actions that “had the serious risk, if not purpose, of causing specific injuries on account of race.”

In addition, Kennedy said, the broad reading by the appeals court had no limit.

“Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation,” he wrote. “Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide.”

Scalia and Thomas said the plurality had twisted the precedents out of shape and should have just overturned them, instead.

Sotomayor said, “On this point, and this point only, I agree with Justice Scalia that the plurality has rewritten those precedents beyond recognition.” But she said the appeals court read them right. There may not be a single statewide initiative in any state in which voters approved policies that favor minority groups, she wrote.

And by passing a constitutional amendment forbidding consideration of race, she wrote, Michigan had made it harder for minorities to reach their goals. Her example:

“A white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy.” But “a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.”

Reaction to the decision

Michigan Attorney General Bill Schuette (R) praised the Supreme Court’s decision to overturn the appeals court’s ruling.

“The U.S. Supreme Court made the right call today,” Schuette said. “Our state constitution requires equal treatment in college admissions, because it is fundamentally wrong to treat people differently based on the color of their skin. A majority of Michigan voters embraced the ideal of equal treatment in 2006, and today their decision was affirmed.”

It is unclear how the decision might move other states. Eight already ban racial considerations. And even some conservative states — Texas, for instance — have been adamant that they be allowed to consider race in order to achieve diverse student bodies.

But the court’s decision could encourage opponents of affirmative action to press for movement, using the decision as an impetus.

“The Supreme Court has given voters the green light to eliminate the use of racial preferences in college admissions, which is discouraging for racial diversity,” said Richard D. Kahlenberg, a scholar at the Century Foundation who has advocated for economic diversity in admission decisions.“The good news, however, is that there are alternative ways to achieve diversity that can also deal with economic inequalities.”

The case is Schuette v. Coalition to Defend Affirmative Action.

William Branigin contributed to this report.