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:
In reviewing the Michigan amendment, the Sixth Circuit observed that, as a result of the amendment,
Concluding that the "existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change[,]"4 the Sixth Circuit struck down the amendment.
The Supreme Court's Decision
Justice Kennedy, who has been seen as the deciding vote in a number of other cases involving affirmative action, was joined by Chief Justice Roberts and Justice Alito in a plurality opinion reversing the Sixth Circuit. "This case," wrote Justice Kennedy, "is not about how the debate about racial preferences should be resolved. It is about who may resolve it."5
As interpreted by the plurality, the "political process" doctrine applies only to changes in process that arise from an "invidious intent." Specifically, the plurality held that, absent an intent to discriminate, "courts may not disempower the voters from choosing which path to follow [regarding whether to allow race conscious admissions policies]."6 When coupled with separate concurrences by Justice Scalia (joined by Justice Thomas), who would ban all race conscious determinations, and Justice Breyer, who would uphold the ban on narrow factual grounds, the opinion allows voters to pass limits on the use of race conscious admissions.
In a passionate dissent, Justice Sotomayor criticized the plurality for fundamentally misunderstanding the nature of the injustice worked by the amendment to the state constitution:
As a result . . . there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State's universities: one for persons interested in race-sensitive admissions policies and one for everyone else. . . .
Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else. . . .
When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.7
The Significance of the Decision
The decision in Schuette will have no immediate effect on either public or private employers or higher education admissions outside of Michigan. On the other hand, the decision may, of course, encourage political activities in other states that could eventually affect public employers and universities in such states.
Footnotes
1. 539 U.S. 306 (2003).
2. 701 F.3d 466, 474 (6th Cir. 2012).
3. Id. at 474.
4. Id.
5. Op. of Kennedy, J. at 18.
6. Op. of Kennedy, J. at 13.
7. Op. of Sotomayor, J. at 2-5 (dissenting).
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