SCOTUS Upholds a Race Preference Ban

SCOTUS Upholds a Race Preference Ban

Today the Supreme Court decided that Michigan's affirmative-action ban is constitutional. Here's a brief history of how this became an issue, as well as a "too long, didn't read" summary of the decision itself.

In the late 1960s, the Supreme Court considered an amendment to the city charter of Akron, Ohio. Passed in response to a fair-housing victory in the city council, the amendment stated that any law pertaining to racial discrimination in housing had to go through a special process -- it had to be approved by a majority of voters before it could go into effect. The court struck down the law on Fourteenth Amendment equal-protection grounds, holding that "the charter amendment contains an explicitly racial classification treating racial housing matters differently from other racial and housing matters and places special burdens on racial and religious minorities within the governmental process by making it more difficult for them to secure legislation on their behalf."

Then, in the early 1980s, the court dealt with a Washington State ballot initiative banning race-based school busing, passed in response to a Seattle school-board policy requiring it. Citing the earlier case, the court decided the initiative unconstitutionally "uses the racial nature of an issue to define the governmental decisionmaking structure, thus imposing substantial and unique burdens on racial minorities."

The new case is a challenge to Michigan's constitutional amendment banning racial preferences in college admissions, which was enacted via referendum after the Supreme Court allowed affirmative action to continue at the state's schools. Liberals in support of the case have endorsed the previous rulings and highlighted the commonalities between them and Michigan's amendment. Conservatives, meanwhile, have responded with a collective "Come on." While many on the right concede that the equal-protection clause probably wasn't meant to mandate government colorblindness across the board, most say it's absurd to claim a state law requiring colorblindness could violate equal protection.

At any rate, the conservatives won the day, with six justices (including the liberal Stephen Breyer) agreeing that Michigan's amendment is constitutional even as they disagreed about why. Moderate Anthony Kennedy, joined by conservatives John Roberts and Samuel Alito, gave the plurality opinion; conservatives Antonin Scalia and Clarence Thomas filed a concurring opinion; Roberts and Breyer each filed a concurrence as well; liberals Sonia Sotomayor and Ruth Bader Ginsburg filed a dissenting opinion; and liberal Elena Kagan took no part (she worked on the case as solicitor general).

Kennedy, Roberts, and Alito argue that the previous cases were considerably different from the matter currently under consideration:

Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the State's voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. [Hunter is the Akron case; Mulkey preceded it and dealt with a California amendment barring the state from interfering with property owners' decisions to sell or rent to whomever they chose.] Although there had been no judicial finding of de jure segregation with respect to Seattle's school district, it appears as though school segregation in the district in the 1940's and 1950's may have been the partial result of school board policies that "permitted white students to transfer out of black schools while restricting the transfer of black students into white schools."

Accusing a lower court of reading the Seattle case too broadly, the justices say that the Constitution allows the public to debate racial preferences and enact laws about them, because preference bans do not inflict "hurt or injury" on racial minorities. They write that "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."

In a concurrence, Scalia (joined by Thomas but writing in his trademark biting style) highlights the contradiction in saying that the equal-protection clause forbids states to require race neutrality, and hits the majority opinion for "reinterpret[ing]" the previous cases. He says that those cases do, indeed, suggest that race-preference bans are unconstitutional: "One level of government exercised borrowed authority over an apparently 'racial issue,' until a higher level of government called the loan. So too here." Instead of trying to reconcile their ruling with these precedents, Scalia says, the plurality justices should have just overruled them. The earlier cases are "patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence" -- they require courts to decide what is and is not a "racial issue," threaten state sovereignty, and treat facially neutral laws as discriminatory simply because they have racially unbalanced effects.

Breyer, in his concurrence, says that the Constitution doesn't authorize judges to decide the question of racial preferences one way or the other. He also characterizes the Seattle and Akron cases as involving a "restructuring of the political process" that is not present in Michigan: In Akron, decisionmaking moved from the city council to the electorate at large; in Washington, decisions made by an elected school board were replaced by the decisions of voters statewide; and in both of these cases, the change happened after minorities had participated in the political process and won, securing a fair-housing law in Akron and busing in Seattle. By contrast, in Michigan, the power to set admissions policy always resided with the state government -- even if it delegated that authority to administrators until the amendment. Further, these administrators were unelected, meaning that there was no political process in which minorities participated to enact racial preferences.

Sotomayor and Ginsburg argue that Michigan's amendment "changed the basic rules of the political process ... in a manner that uniquely disadvantaged racial minorities." Unlike Breyer, they take exception to the act of moving decisionmaking power from college administrations to the state government, noting that there are now two different processes for people who want to change university policies -- those advocating affirmative action must now turn to the state constitution, while those concerned about other matters can go directly to the schools. They concede that courts needn't resolve the issue of racial preferences, but insist that constitutional amendments warp the playing field and stop debate from unfolding the way it should.

(Roberts's concurrence is a brief response to the liberals' dissent, accusing them of focusing on their own policy preferences instead of the law and trying to smear their opponents as "out of touch with reality.")

With the final vote tally at 6-2, this issue is probably settled for a while.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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