Michigan Ban on Affirmative Action Upheld by Supreme Court

“I cannot ignore the unfortunate outcome of today's decision: 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 are unnecessarily hobbled in their pursuit of a diverse student body,” Sotomayor wrote in dissent.

The case decided today is'Schuette v. Coalition to Defend Affirmative Action, which asked the court to reinstate a 2006 ballot initiative called Proposal 2 that amended Michigan's constitution to ban “preferential treatment” based on race, gender or ethnicity in state education, employment or contracting.

Supporters of affirmative action relied on a line of precedents that prohibits altering the structure of government in ways that make it harder for minorities to seek political gain. The leading case is a 1969 decision'Hunter v. Erickson, which struck down an amendment to the city charter of Akron, Ohio, that forced any proposed changes to fair housing laws to be put to the voters for approval.

The U.S. Court of Appeals for the Sixth Circuit adopted the restructuring doctrine in striking down the ballot initiative, prompting Michigan Attorney General Bill Schuette to appeal to the high court.

During'oral arguments'Oct. 15, then-Michigan solicitor general John Bursch defended the ballot initiative, while Mark Rosenbaum of the American Civil Liberties Union of Southern California and Shanta Driver, chairwoman of the Coalition to Defend Affirmative Action, argued against it on behalf of two sets of plaintiffs.

Tony Mauro'covers the U.S. Supreme Court for ALM Media. He can be reached at'[email protected].

The U.S. Supreme Court on April 22 voted, 6-2, to uphold Michigan's ban on state affirmative action programs, finding that the court has no authority to set aside the measure approved by voters.

Justice Anthony Kennedy wrote the main opinion for a fractured court. In announcing the ruling, Kennedy said the decision is “not about the constitutionality or merits” of affirmative action generally. Read the court's opinion'here.

Justice Sonia Sotomayor read from her dissent, which was joined by Justice Ruth Bader Ginsburg. In her 58-page dissent, Sotomayor said the court “eviscerates” a key equal-protection guarantee that government should not make it harder for minorities to participate in self-government. Justice Elena Kagan recused in the case, probably because she was involved in the litigation at earlier stages as solicitor general at the U.S. Department of Justice.

“I cannot ignore the unfortunate outcome of today's decision: 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 are unnecessarily hobbled in their pursuit of a diverse student body,” Sotomayor wrote in dissent.

The case decided today is'Schuette v. Coalition to Defend Affirmative Action, which asked the court to reinstate a 2006 ballot initiative called Proposal 2 that amended Michigan's constitution to ban “preferential treatment” based on race, gender or ethnicity in state education, employment or contracting.

Supporters of affirmative action relied on a line of precedents that prohibits altering the structure of government in ways that make it harder for minorities to seek political gain. The leading case is a 1969 decision'Hunter v. Erickson, which struck down an amendment to the city charter of Akron, Ohio, that forced any proposed changes to fair housing laws to be put to the voters for approval.

The U.S. Court of Appeals for the Sixth Circuit adopted the restructuring doctrine in striking down the ballot initiative, prompting Michigan Attorney General Bill Schuette to appeal to the high court.

During'oral arguments'Oct. 15, then-Michigan solicitor general John Bursch defended the ballot initiative, while Mark Rosenbaum of the American Civil Liberties Union of Southern California and Shanta Driver, chairwoman of the Coalition to Defend Affirmative Action, argued against it on behalf of two sets of plaintiffs.

Tony Mauro'covers the U.S. Supreme Court for ALM Media. He can be reached at'[email protected].