What Supreme Court’s Affirmative Action Ruling Means for Universities

Law School’s Chris Bracey explains Michigan’s ban on considering race in admissions.

What Supreme Court’s Affirmative Action Ruling Means for Universities
April 23, 2014

The Supreme Court decided to uphold Michigan’s state ban on racial preferences in university admissions processes Tuesday in Schuette v. Coalition. The case was brought to the Supreme Court after Michigan residents voted to pass a proposal rendering affirmative action illegal in college admission policies.

The decision polarized Supreme Court justices, with a majority ruling in favor of the ban, while Sonia Sotomayor and Ruth Bader Ginsburg dissented. Justice Elena Kagan recused herself from the case.

In an interview with George Washington Today, Senior Associate Dean for Academic Affairs and Professor at the George Washington University Law School Chris Bracey detailed the intricacies of the ban, the arguments the justices posed and what the decision will mean for universities nationwide.

Q: Can you explain the details of the ban, and what it will mean for the Michigan? How is this going to change the admissions process?
A: In 2006, Michigan voters approved an amendment to the state constitution to provide that Michigan’s public colleges and universities “shall not discriminate against, or give preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national original in the operation of public employment, public education or public contracting.” 

This prohibited Michigan’s universities from taking race into account during the admissions process in order to promote diversity among the student body—something that the universities had previously done and that the Supreme Court had ruled was constitutionally permissible in Grutter v. Bollinger. 

The Supreme Court’s decision means that university officials in Michigan are no longer able to use race as a factor in their efforts to pursue the goal of diversity in higher education as part of their academic mission. 

Q: Will the Supreme Court decision affect colleges or universities nationwide? 
A:  The Supreme Court’s decision affects only colleges and universities in Michigan. However, there are similar efforts underway in others states to modify state constitutions or pass legislation designed to restrict the ability of state actors to take race into account. The court’s ruling makes clear that it will not stand in the way of such efforts. Private universities in states that move forward on these efforts may be indirectly affected. But the court made clear that its ruling does not disturb its prior decisions that the consideration of race in admissions, including to attain a diverse student body, is permissible, provided that certain conditions are met.

Q: Justice Kennedy wrote that the court’s decision is not about how the debate over racial preferences is resolved, but about who resolves it. Can you explain his point of view?
A: Justice Kennedy believes that the freedom secured by the U.S. Constitution is the freedom of self-government. Thus, he sides with Michigan voters, who in his view, exercised their democratic prerogative to ban the use of race preferences in university admissions processes. He thinks it is demeaning to the democratic process to overturn what has been democratically decided by a majority of the voters.

Q: Justices Sonia Sotomayor and Ruth Bader Ginsburg both dissented on the case. What is their view?
A: Justices Sotomayor and Ginsburg view freedom and self-government as subject to an important constitutional limit. They believe the majority cannot manipulate or distort the political process in a way that places special burdens on racial minorities. 

With the enactment of the ban, Michigan changed the rules of the political process. Now, if a person wants to advocate the use of race preferences in university admissions, one must undertake the monumental task of securing another state constitutional amendment. 

For the justices, this is an important constitutional limit on the general idea of self-governance—and it is reminder that we live in not just any democracy, but a Constitutional democracy.

Q: Are any other states likely to adopt or vote on similar bans?
A: Other states, such as Washington, California, Nebraska, Oklahoma, Florida, New Hampshire and Arizona, have already enacted state constitutional amendments or legislation or adopted referenda to ban race preferences. The Supreme Court’s ruling certainly paves the way for other states to adopt similar measures.