Affirmative action struck down by nation’s top court

Posted: May 18, 2014 in Shorts

Justice Clarence Thomas and Justice Sonia Sotomayor

Affirmative action lost a major battle this week. In a 6-2 decision, the U.S. Supreme Court allowed a majority of voters in Michigan to end affirmative action in the state. The Schuette v. Coalition to Defend Affirmative Action case has given opponents of affirmative action a powerful weapon. This case says majority rules in a land of minorities.

Opponents of affirmative action argued Michigan voters had a right to end it by statewide ballot. The court agreed. Proposal 2 bans the use of any preferences based on race, sex, color, ethnicity and national origin in any employment, contracting and education decisions involving state and local government.

Back in 2006, Proposal 2 was placed on the voting ballot in Michigan. Prop 2 asked voters to decide if race and sex preferences should be prohibited in governmental decisions. Then, 57 percent of voters agreed to end any race and sex preference. They voted by statewide referendum to amend their constitution and eliminate affirmative action.

Justice Sonia Sotomayor, in her 58-page dissent, reminded her colleagues on the court of America’s history of discrimination that gave rise to affirmative action. She tried to persuade the court that allowing the majority to decide the fate of minorities, who rely on affirmative action for education and employment opportunities, would turn back the clock on racial justice.

The number of African-Americans and Latinos entering colleges and law schools has steadily decreased with each affirmative action loss before the high court. The Coalition to Defend Affirmative Action and a group called By Any Means Necessary, along with the ACLU and NAACP, brought a lawsuit against Michigan Attorney General Bill Schuette to halt the start of Prop 2’s ban on affirmative action in university admissions.

The court ruled that it is proper to use statewide elections when local politicians do not listen to the will of the people. However, statewide elections shift power outside of the people in urban areas to rural and suburban voters. Blacks and other racial groups have larger numbers in Michigan cities like Detroit, Lansing, and Flint. Opponents of Prop 2 argue the law removes input from local admissions committees and intentionally eliminates political access by minorities.

The battle over Michigan’s affirmative action programs is decades old. In an earlier Michigan case, the Supreme Court ruled that race could be one factor in college admissions. That Grutter v. Bollinger case involved Michigan’s law school. The court decided affirmative action was legal if it was one of many factors taken into consideration for admission into the University of Michigan Law School.

However, Prop 2 was initiated to ban affirmative action altogether. This Schuette case follows a June decision by the Supreme Court brought by a white applicant named Abigail Fisher. Fisher claimed she was not admitted to the University of Texas because of affirmative action. The Supreme Court held off ending affirmative action. Instead, the court sent the case back down to the lower court with instructions to find a way to achieve racial diversity without using the word race.

Given this Schuette decision, the Fisher case will probably come back before the court next year with limited predictions of success. However, even in the Texas case, affirmative action was still considered a legal way to create diversity in higher education. Now that the court has allowed Michigan to use a statewide referendum to ban affirmative action, other states such as Texas are proposing similar amendments to their constitutions.

Justice Antonin Scalia, joined by Clarence Thomas, the only African-American justice, upheld Prop 2. They found that as long as there was no racially discriminatory purpose in Michigan’s Prop 2 referendum, then it is legal. However, finding evidence of a racially discriminatory purpose in a statewide anti-affirmative action referendum is a difficult task.

This year marks the 50th anniversary of the 1964 Civil Rights Act. That act protected people based on race, sex, national origin and color. The majority of voters in Michigan seem to believe this is now a post-race era, where programs such as affirmative action are no longer necessary. The court’s decision in the Schuette case says if the majority votes America is post-race, then their vote rules.


Gloria J. Browne-Marshall, an associate professor of constitutional law at John Jay College in New York City, is a writer and the author of “Race, Law, and American Society: 1607 to Present.” She reports on the U.S. Supreme Court, United Nations and national legal issues. Follow her on Twitter@GbrowneMarshall.

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