Supreme Court Upholds Michigan Voters' Ban On Race Conscious Admissions

On April 22, 2014, the United States Supreme Court, in a 6-2 decision (with Justice Kagan recused), upheld a Michigan ballot initiative that amended the state constitution to prohibit the use of race conscious admissions policies at state universities. The case, Schuette v. Coalition to Defend Affirmative Action, (Case No. 12-682), concerned whether, and in what manner, voters in a state can prohibit consideration of such race conscious policies. In a fractured opinion, the Court held that the voter-approved amendment did not run afoul of the Equal Protection clause of the Fourteenth Amendment, and that the electorate is the proper entity for deciding these questions.

The decision will likely have no direct impact on employers, but may energize opponents of affirmative action to increase their political activity. The decision also confirms that a number of the Justices remain wary of affirmative action while at least two would appear to welcome the chance to declare any consideration of race unconstitutional. Accordingly, the extent to which affirmative action programs will be able to survive future constitutional challenges remains unclear.

Case History

After the Supreme Court upheld the use of race conscious admission policies at the University of Michigan in Grutter v. Bollinger,1 Michigan voters adopted an amendment to the state constitution that prohibited state universities from granting race-based preferences for any admissions decision. A group of plaintiffs challenged the amendment, and a divided panel of the U.S. Court of Appeals for the Sixth Circuit found that the amendment violated the "political process" doctrine by circumventing the Universities' Boards, which traditionally had plenary control of the admissions process, and gave decision-making authority directly to the voters.

As explained by the Sixth Circuit, the political process doctrine derives from the U.S. Constitution's Equal Protection Clause and:

[g]uarantee[s] that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them. In effect, the political process doctrine hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner's course. Ensuring the fairness of the political process is particularly...