Supreme Court Upholds Michigan’s Affirmative Action Ban

4/22/14
 
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from The Wall Street Journal,
4/22/14:

Justices Decide States Can End Racial Preferences Without Violating Constitution.

The Supreme Court on Tuesday upheld Michigan’s decision to end affirmative action at its public universities in a 6-2 ruling, but the justices were divided in their reasoning, suggesting continued uncertainty over the broader issue of racial preferences.

The ruling leaves in place a 2006 Michigan ballot initiative where voters ended race-based admissions at state schools, and means racial preferences won’t soon return to the University of Michigan—or any other public university in states that have chosen to end the practice.

“Democracy does not presume that some subjects are either too divisive or too profound for public debate,” Justice Anthony Kennedy wrote in backing the law.

The court’s ruling didn’t alter the ability of universities in states without bans to consider race as one factor among others in admissions. Instead, the court chipped away at affirmative action by giving its blessing to one path for foes to challenge admissions policies: ballot initiatives. Opponents have also gone to courts and state legislatures to end affirmative-action practices in a decadeslong battle over university policies.

Eight states, including California, have ended affirmative action since 1996. Practices vary widely among institutions. The higher-education establishment generally favors the use of racial preferences to promote diversity in the student body. Many of the nation’s most selective universities—including the Ivy League, the U.S. military academies and flagship public institutions such as the University of Texas at Austin and the University of North Carolina at Chapel Hill—employ affirmative action.

Tuesday’s ruling saw both the court’s right and left wings splinter, suggesting the justices are far from consensus on when affirmative action may be allowed, an issue sure to return to the court in the coming years.

The court’s five conservatives produced three different opinions. Justice Stephen Breyer split from two liberals to side with Michigan for separate reasons. The fourth liberal justice, Elena Kagan, recused herself, presumably because she was involved in the case in her previous post as U.S. solicitor general.

The closest the court came to consensus was a plurality opinion by Justice Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito. Justice Kennedy tried to walk a moderate line. He acknowledged the U.S.’s painful history of racial exclusion, while concluding Michigan voters retained the prerogative to adopt a ballot initiative expressly prohibiting both discrimination and preferences.

Seemingly trying to cool emotions, Justice Kennedy stressed at the outset “what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”

Instead, he wrote, the issue was which level of government held the power to decide if affirmative action to promote diversity was an appropriate policy in public institutions.

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