On April 22, 2014, the United States Supreme Court, in a 6-2 decision (with Justice Kagan recused), upheld a Michigan ballot initiative that amended the state constitution to prohibit the use of race conscious admissions policies at state universities.  The case, Schuette v. Coalition to Defend Affirmative Action, (Case No. 12-682), concerned whether, and in what manner, voters in a state can prohibit consideration of such race conscious policies.  In a fractured opinion, the Court held that the voter-approved amendment did not run afoul of the Equal Protection clause of the Fourteenth Amendment, and that the electorate is the proper entity for deciding these questions. 

The decision will likely have no direct impact on employers, but may energize opponents of affirmative action to increase their political activity.  The decision also confirms that a number of the Justices remain wary of affirmative action while at least two would appear to welcome the chance to declare any consideration of race unconstitutional.  Accordingly, the extent to which affirmative action programs will be able to survive future constitutional challenges remains unclear.      

Case History

After the Supreme Court upheld the use of race conscious admission policies at the University of Michigan in Grutter v. Bollinger,¹ Michigan voters adopted an amendment to the state constitution that prohibited state universities from granting race-based preferences for any admissions decision.  A group of plaintiffs challenged the amendment, and a divided panel of the U.S. Court of Appeals for the Sixth Circuit found that the amendment violated the “political process” doctrine by circumventing the Universities’ Boards, which traditionally had plenary control of the admissions process, and gave decision-making authority directly to the voters. 

As explained by the Sixth Circuit, the political process doctrine derives from the U.S. Constitution’s Equal Protection Clause and:

[g]uarantee[s] that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them. In effect, the political process doctrine hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course. Ensuring the fairness of the political process is particularly important because an electoral minority is disadvantaged by definition in its attempts to pass legislation; this is especially true of “discrete and insular minorities,” who face unique additional hurdles.²

In reviewing the Michigan amendment, the Sixth Circuit observed that, as a result of the amendment,

[a] student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process.³

Concluding that the “existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change[,]”⁴ the Sixth Circuit struck down the amendment.

The Supreme Court’s Decision

Justice Kennedy, who has been seen as the deciding vote in a number of other cases involving affirmative action, was joined by Chief Justice Roberts and Justice Alito in a plurality opinion reversing the Sixth Circuit.  “This case,” wrote Justice Kennedy, “is not about how the debate about racial preferences should be resolved.  It is about who may resolve it.”⁵          

As interpreted by the plurality, the “political process” doctrine applies only to changes in process that arise from an “invidious intent.”  Specifically, the plurality held that, absent an intent to discriminate, “courts may not disempower the voters from choosing which path to follow [regarding whether to allow race conscious admissions policies].”⁶ When coupled with separate concurrences by Justice Scalia (joined by Justice Thomas), who would ban all race conscious determinations, and Justice Breyer, who would uphold the ban on narrow factual grounds, the opinion allows voters to pass limits on the use of race conscious admissions.

In a passionate dissent, Justice Sotomayor criticized the plurality for fundamentally misunderstanding the nature of the injustice worked by the amendment to the state constitution:

Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities – including race-sensitive admissions policies – were in the hands of each institution’s governing board.  The members of those boards are nominated by political parties and elected by the citizenry in statewide elections.  After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity.  And this Court twice blessed such efforts.

In the wake [of this Court’s decisions], some voters in Michigan set out to eliminate the use of race-sensitive admissions policies.  Those voters were of course free to pursue this end in any number of ways.  For example, they could have persuaded existing board member to change their minds . . . or . . . mobilized efforts to vote uncooperative board members out of office. . . .  When this court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy.  Our system of government encourages – and indeed, depends on – that type of democratic action.

But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.  They did so . . . by amending the Michigan Constitution . . . [to provide that] Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

As a result . . . there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. . . .

Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else. . . .

When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.⁷

The Significance of the Decision

The decision in Schuette will have no immediate effect on either public or private employers or higher education admissions outside of Michigan.  On the other hand, the decision may, of course, encourage political activities in other states that could eventually affect public employers and universities in such states.