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College & Workforce Readiness

Michigan Affirmative-Action Ruling May Have Modest K-12 Effect

By Mark Walsh — May 02, 2014 5 min read
Students walk through the campus of the University of Michigan in Ann Arbor. The United States Supreme Court has upheld Michigan's ban on race-based preferences in university admissions enacted by voters in 2006.

The U.S. Supreme Court’s highly anticipated decision upholding a Michigan ballot initiative that bars race-based preferences in admissions at the state’s universities may have only a modest impact on K-12 schools, several legal experts say.

The April 22 ruling was one more indication, however, that a majority of the justices are, at best, impatient with the continuing ways in which educational institutions use race in student selection.

“Whether this case ends up being a big deal or not depends on how state legislatures react,” said James E. Ryan, the dean of the Harvard Graduate School of Education and a scholar on education law. “If you keep putting the pieces together, it does seem that from the court’s perspective, we’re on the slow path to eliminating race-based affirmative action.”

Fractured Court

The Supreme Court ruled 6-2 in Schuette v. Coalition to Defend Affirmative Action (Case No. 12-682) to uphold the 2006 ballot measure known as Proposal 2. The Michigan measure also bars racial preferences in K-12 public schools and other areas of state government, but the case before the high court concerned only the prohibition of such preferences in college admissions.

The court was deeply fractured, though, and no opinion commanded a majority.

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

Justices Antonin Scalia, Clarence Thomas, and Stephen G. Breyer wrote or joined opinions concurring in the judgment.

Justice Sonia Sotomayor wrote a strong dissent that was joined by Justice Ruth Bader Ginsburg, parts of which Justice Sotomayor read from the bench.

“Short of amending the state constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body,” she said.

Justice Elena Kagan did not participate in the case, presumably because she had worked on it while serving as U.S. solicitor general.

Appellate Court’s View

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had said in an 8-7 ruling in 2012 that the Michigan measure violated the 14th Amendment equal-protection rights of racial minorities in the state by making it harder for them to achieve a political goal, namely, the adoption of a race-conscious admissions policy by the state board of regents.

The 6th Circuit court’s ruling was based on a legal theory known as the “political restructuring” doctrine. The appellate-court majority said Michigan’s Proposal 2 violated the equal-protection clause as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a local fair-housing ordinance. In

The appeals court said race-conscious admissions policies mainly benefit racial minorities. It said that Proposal 2 brought about a significant change in the ordinary political process and that it was an unconstitutional racial classification.

In his plurality opinion for the Supreme Court, Justice Kennedy said Michigan voters “acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting in Justice.”

Justice Scalia said he would go further than the plurality by overruling Washington v. Seattle School District No. 1 and Hunter v. Erickson.

Justice Breyer said the Seattle-Hunter political-process doctrine did not easily fit the Michigan situation, because university boards had delegated authority to faculty committees to decide whether to have race-conscious admissions policies.

Proposal 2 permissibly “took decisionmaking authority away from these unelected actors and placed it in the hands of the voters,” he said.

Meanwhile, in her dissent, Justice Sotomayor delivered a pointed answer to Chief Justice Roberts’ well-known statement from the 2007 case of Parents Involved in Community Schools v. Seattle School District.

In that case, in which the court sharply limited the ways school districts could voluntarily take race into account in assigning students to schools, the chief justice had said: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Sotomayor, who was not on the court in 2007, said this in her dissent in the most recent case: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Varied Reactions

Kristi L. Bowman, a law professor at Michigan State University in East Lansing and an expert on education law, said the decision’s implications for the larger debate on the use of race in education are tenuous.

“We don’t read this case and know how it’s going to apply to K-12 schools, and that is made even more complicated by how fractured the decision is,” she said.

Edward Blum, the founder and director of the Project on Fair Representation, a Washington organization that is challenging race-based government action in various forms, said that while the Schuette decision was complex and not directly about racial preferences, “it dramatically reinvigorated the debate that the nation is having about the fairness and constitutionality of race-based affirmation action.”

Mr. Blum’s group is behind the challenge to race preferences in admissions at the University of Texas at Austin, which is pending before a federal appeals court after the Supreme Court last year ordered greater scrutiny of the university’s program.

And Mr. Blum is actively seeking litigants who could challenge the use of race in admissions at Harvard University, the University of North Carolina at Chapel Hill, and the University of Wisconsin-Madison.

A version of this article appeared in the May 07, 2014 edition of Education Week as Affirmative-Action Ruling May Have Modest K-12 Impact

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