Justices say Michigan voters have the right to change their state constitution to stop colleges using race as a factor in admissions

A ban on affirmative action policies that favour minority students has been upheld by the US supreme court, in a ruling that racial equality campaigners claim is as significant a setback for the civil rights movement as the court's recent reversal of the Voting Rights Act.



Six justices ruled on Tuesday in favour of a ballot initiative narrowly passed by Michigan voters in 2006 that banned the state's public universities from using race as a factor when deciding which students to admit, arguing that doing so discriminated against white students.

The ban had been ruled unconstitutional by a lower appeals court, but the supreme court overturned the earlier decision and upheld the Michigan law on the grounds that it was up to voters in each state to decide whether to allow affirmative action.

The majority argued the case was not about the merits of the policy itself, but whether states should be left free to decide on this vexed political issue rather than the courts.

The court’s conservatives – and swing vote Anthony Kennedy, who wrote the decision – were joined in the ruling by liberal justice Stephen Breyer, who emphasised in a concurring opinion that he believes “the constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan constitution,” but added, “the constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

However, opponents of the Michigan law argued that a majority of white voters should not be allowed to prevent universities from seeking to adjust for social and economic factors that they say unfairly hold minority students back.

“We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups,” wrote justice Sonia Sotomayor in a dissent in which justice Ruth Bader Ginsburg joined her.

“For that reason, our constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there … 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.”

Justice Elena Kagan, another of the court’s liberals, sat out of the case due to conflicts of interest.

Although a majority of supreme court justices argued their Michigan decision should not be viewed as a blow for affirmative action in general, it follows a similar ruling in June that also raised the bar for those remaining universities that seek to apply such policies.

The conservative-dominated court has also been heavily criticised by racial equality campaigners for overturning parts of the 1965 Voting Rights Act last June on similar constitutional arguments in favour of states' rights.

“This is as bad as the voting rights decision,” said Detroit lawyer George Washington, who represented the Coalition to Defend Affirmative Action in the latest Michigan case.

“These are major attacks on the civil rights movement that will lead to a re-segregation of universities,” he told the Guardian.

But justice Anthony Kennedy, who wrote the court's majority decision, insisted it was wrong to read this much into the case.

“[I]t is important to note what this case is not about,” he said. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education …The question here concerns not the permissibility of race-conscious admissions policies under the constitution but 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.”