A divided Supreme Court upheld Michigan's ban on race conscious admissions policies at public universities today, reversing a lower court decision that had struck down the ban on equal protection grounds.
Justice Anthony Kennedy wrote the main opinion and said, "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in the Court's precedents for the Judiciary to set aside Michigan's laws that commit this policy determination to the voters."
The vote was 6-2. Justice Elena Kagan took no part in the decision presumably because she dealt with it in her previous job as solicitor general. Justice Sonia Sotomayor wrote a dissent joined by Justice Ruth Bader Ginsburg.
The case concerns a ballot initiative called Proposal 2 that passed in 2006 with 58 percent of the vote and amended the state constitution. Michigan's Solicitor General John J. Bursch defended the ballot initiative in court and told the justices, "The issue in this case is whether a Michigan constitutional provision requiring equal treatment violates equal protection." "The answer is no," he said.
Kennedy wrote, "Deliberative debate on sensitive issues such as racial preferences all too often may shade in rancor. But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate. "
Kennedy reiterated that the court left undisturbed the principle that the consideration of race in admissions is permissible, provided certain circumstances are met. He said the case is "not about the constitutionality, or the merits, or race conscious admissions policies in higher education."
But Sotomayor, who says in her autobiography that she was helped by affirmative action, wrote a scathing dissent and took the unusual step of reading it from the bench.
Sotomayor agreed in part with the reasoning of the lower court that struck down the ban. In essence that court said that individuals who want a school to consider non-racial factors such as legacy status, geographic origin and athletic skills in its admission plan have the ability to lobby the popularly elected governing boards of the schools. But those black, Latino and other minority citizens who seek to restore the consideration of race as one factor in admissions were blocked from doing so by Proposal 2.
"The plurality's decision fundamentally misunderstands the nature of the injustice" worked by Proposal 2," Sotomayor wrote. "While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admission policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents."