Executive Summary: The U.S. Supreme Court has upheld an amendment to the Michigan constitution that prohibits the use of race-based preferences as part of the admissions process for all state universities. See Schuette v. Coalition to Defend Affirmative Action (BAMN), 2014 U.S. LEXIS 2932 (U.S. Apr. 22, 2014). In upholding the amendment, the Court clarified that its decision does not address the constitutionality or merits of race-conscious admissions policies in higher education, but whether, and in what manner, voters can prohibit the consideration of racial preferences in governmental decisions. The plurality decision authored by Justice Kennedy found "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 2003, the U.S. Supreme Court decided a pair of cases addressing the admissions systems at the University of Michigan, one for its undergraduate class and one for the law school. Both systems permitted explicit consideration of the applicant's race. In Gratz v. Bollinger, 536 U.S. 244 (2003), the Court held that the undergraduate admissions process violated the Equal Protection Clause of the U.S. Constitution. In Grutter v. Bollinger, 539 U.S. 306 (2003), a 5-4 decision, the Court held that the law school's use of race as a "plus" factor in making an individualized decision on admission was constitutional. In response to these decisions, Michigan voters adopted Proposal 2, an amendment to their state constitution which, among other things, prohibits the use of race-based preferences as part of the admissions process for all state universities. The amendment also bans giving preferential treatment to applicants on account of race, ethnicity, and gender in public employment and public contracting. Many groups rallied against the amendment based on the detrimental impact they believed it would have on attempts to diversify public institutions.
The amendment was challenged in court and, in 2011, the Sixth Circuit held that the amendment violated the principles set forth by the Supreme Court in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), in which the Court overruled a state initiative that barred busing for desegregation purposes. According to the Supreme Court, the Sixth Circuit read Seattle as holding that any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny.
The Supreme Court Decision
In a 6-2 decision, the Court reversed the Sixth Circuit, rejecting that court's expansive interpretation of Seattle. In upholding the amendment to the Michigan constitution, the plurality opinion held that there is no authority in the federal constitution, or in the Court's precedents, for the judiciary to set aside the will of Michigan voters. The plurality did not view the case as one of the merits of race-conscious admissions in higher education, rather as a question of whether, and in what manner, the voters of a state may choose to prohibit the consideration of racial preferences. In doing so, the plurality steered clear of evaluating whether the amendment violates the Equal Protection Clause and instead framed the issue as one of voters having the right to determine what they think is appropriate for their state. The Court emphasized that "[t]he holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow."
Thus, the Court's decision establishes that voters may repeal affirmative action programs through amendments to their state constitution. This will impact not only admissions in public institutions, but also hiring initiatives that consider race, ethnicity, and gender as factors in evaluating applicants.
In their concurrence, Justices Scalia and Thomas agreed that the amendment is constitutional but framed the question under the Equal Protection Clause. They concluded that the amendment, which states in relevant part that race shall not be used in making admissions decisions by state entities, is a neutral state action which, by the nature of what it prohibits, does not reflect a racially discriminatory purpose. Put another way, any law expressly requiring state actors to afford all persons equal protection of the laws does not, and cannot, deny any person equal protection. Justice Breyer concurred, also finding that the amendment did not violate the Equal Protection Clause, but applying a much narrower analysis.
Justice Sotomayor and Justice Ginsburg dissented, equating the actions of Michigan voters in passing the amendment to previous attempts to stifle the meaningful participation in the political process by minority members of society when they "changed the rules in the middle of the game" to the benefit of the majority.
Employers' Bottom Line:
Michigan was not the first state to enact a voter ban on such policies, and the Supreme Court's decision now resolves the split among circuits on the issue. Moving forward, voters in each state can enact bans on affirmative action policies in public institutions. This means that a state university or public entity no longer has the final word on diversity initiatives when it comes to admissions and hiring.
 Justice Kagan did not participate in the consideration or decision of the case.