The U.S. Supreme Court handed down its decision in Schuette v. Coalition to Defend Affirmative Action, et al. on April 22, 2014, in which plaintiffs challenged a voter-approved amendment to Michigan's constitution prohibiting state public universities from employing race-based preferences in their admissions process.
The Michigan constitutional amendment was a reaction to the Supreme Court's decision in Grutter v. Bollinger, where the Court held that ensuring educational diversity justified using race as one factor among many in law school admissions. In a plurality decision, the Supreme Court upheld the amendment, holding 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." As a result of the Court's decision, state public universities in Michigan can no longer consider race when making admission decisions.
Whether or to what extent the Schuette decision will affect existing race-based policies is unclear. The Court's decision clears the way for states to pass laws prohibiting race-based preferences in public university admissions policies or government contract bid processes, among others. In fact, California and Florida already have similar laws in place for public institution admissions. However, Schuette's impact on K-12 schools may only be modest, considering the differences between K-12 schools and state public universities. Generally, recent Supreme Court decisions on race-based affirmative action indicate the Court is slowly moving toward elimination of the practice.
Who Gets to Choose?
Justice Kennedy delivered the plurality opinion which made clear that Schuette was not about "how the debate about racial preferences should be resolved," but about "who may resolve it."
Justice Kennedy explained: "The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions." The plurality reasoned that the difficult question of whether race-based preferences should be included in governmental decision-making must remain within the realm of public discussion, dialogue and debate and should not be removed to the Judiciary, especially considering that no Supreme Court precedent supported such removal.
The plurality opinion arguably casts doubt on the validity of Supreme Court decisions establishing the so-called "political process" doctrine. These prior decisions – Reitman v. Mulkey, Hunter v. Erickson, andWashington v. Seattle School Dist. No. 1, all involved state action that the Supreme Court found placed a special burden on racial minorities within the governmental process. Such burdens rendered the state action "impermissible as any other government action taken with the invidious intent to injure a racial minority." Although the plurality in Schuette stopped short of overturning the "political process" doctrine, it did question its continued application. The plurality's major concern was the doctrine's requirement that the courts engage in the practice of making racial generalizations without clear legal standards to guide those determinations.
Future of the Political Process Doctrine
Justice Kennedy's plurality opinion was joined by Chief Justice Roberts and Justice Alito. Justice Thomas joined Justice Scalia in a separate concurring opinion. Those Justices would have gone considerably farther and required that a governmental policy taking race into account is only permissible as a direct remedy for intentional racial discrimination. Justices Scalia and Thomas were concerned that the plurality opinion left the government free to enact race-based policies to cure "disparate impact" on racial minorities, a practice they believe should be disallowed. In short, Justices Scalia and Thomas would overturn the Court's prior cases establishing the political process doctrine .
Justice Sotomayor wrote a fifty-eight page dissent, which Justice Ginsburg joined. In Justice Sotomayor's view, one of the fundamental strands of equal protection, a strand she believes the Schuette case fits directly into, focuses on "securing to all citizens the right to participate meaningfully and equally in self-government." Justice Sotomayor argued that Schuette was controlled by Seattle and the political process doctrine because by enacting the constitutional amendment, the Michigan citizenry placed a greater burden on racial minorities to advance their interest in race-based admission preferences. She reasoned that prior to the amendment, racial minorities could vote for and lobby members of the boards governing the respective state universities. With the amendment, racial minorities must now pass a constitutional amendment of their own in order to affect their desired policy.
Justice Sotomayor found the constitutional amendment in violation of equal protection. She reasoned a University of Michigan alumnus can advocate for an admissions policy that considers an applicant's legacy status, athletic ability, geography, area of study, and so on, by meeting individually with members of the university's board, while alumnus who wish to advance race-sensitive admissions policies must now "undertake the daunting task of amending the State Constitution."