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Affirmative Action Opinion Raises Diversity Concerns in Higher Ed

By Allen Smith   4/22/2014
An April 22, 2014, decision by the U.S. Supreme Court may result in less diverse graduating classes from public universities in Michigan and other states that pass laws mandating race-blind admissions policies.


In 2003, the Supreme Court struck down the University of Michigan’s undergraduate admissions process, which permitted the explicit consideration of an applicant’s race in Gratz v. Bollinger, 539 U.S. 244. But it upheld the more limited consideration of an applicant’s race by the university’s law school in Grutter v. Bollinger, 539 U.S. 306.

In response to Gratz, the university revised its undergraduate admissions process, but still considered the limited use of race-based preferences.

Voters in 2006 then adopted an amendment to the state constitution prohibiting state entities from granting race-based preferences in the operation of state universities or public employment.

The Coalition to Defend Affirmative Action challenged Section 26, the measure that amended the state constitution. The U.S. District Court for the Eastern District of Michigan upheld Section 26—also called Proposal 2—but the 6th U.S. Circuit Court of Appeals reversed.

Kennedy Opinion

Race-conscious admissions policies in higher education are permitted within certain bounds, Justice Anthony Kennedy noted in a 6-2 decision joined by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.  But, as noted in Grutter, racial preferences are prohibited by state law in certain states, such as California, Florida and Washington. And those states “are currently engaging in experimenting with a wide variety of alternative approaches,” such as socioeconomic status. “Universities in other states can and should draw on the most promising aspects of these race-neutral alternatives as they develop,” the Supreme Court wrote.

In reversing the appeals court decision in this case, Kennedy 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 this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”

He added: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into 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.”

Scalia Concurrence

Concurring, Justice Antonin Scalia in a decision joined by Justice Clarence Thomas suggested Grutter’s days may be limited and noted that if a race-based admissions policy were designed to benefit primarily minorities rather than all students to enhance diversity, the policy would be held unconstitutional.

He wrote separately because he disagreed with Kennedy’s “cloudy and doctrinally anomalous proposition that whenever state action poses ‘the serious risk … of causing specific injuries on account of race,’ it denies equal protection.” He also disagreed with the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact.

Scalia concluded that “any law expressly requiring state actors to afford all persons equal protection of the laws … does not—cannot—deny to any person equal protection of the laws … regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.”

Breyer Concurrence

Justice Stephen Breyer wrote separately to say, “the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan constitution.”

He added: “The Constitution allows local, state and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

Sotomayor Dissent

Writing in a scathing dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor said, “this case is not, as the plurality imagines, about ‘who may resolve’ the debate over the use of race in higher education admissions. … Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved—that is, it must be resolved in constitutionally permitted ways.”

She admonished, “I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection. Because I would do so here, I respectfully dissent.”

Sotomayor noted that university boards had the power to eliminate or adopt race-sensitive admissions prior to Section 26. “There is also no question that Section 26 worked an impermissible reordering of the political process; it removed that power from the elected boards and placed it instead at a higher level of the political process in Michigan.” Michigan residents who were unhappy with Grutter were free to elect governing boards that opposed race-sensitive admissions policies, she noted.  

“My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out,” Sotomayor wrote. “It is a sentiment out of touch with reality, one not required by our Constitution and one that has properly been rejected as ‘not sufficient’ to resolve cases of this nature.”

She then described how historically low the enrollment of racial minorities in Michigan has been in the state’s public institutions of higher education, and how the use of race-sensitive admissions policies has resulted in much greater diversity at its universities.

“Section 26 has already led to decreased minority enrollment at Michigan’s public colleges and universities,” she said. “In 2006 (before Section 26 took effect), underrepresented minorities made up 12.15 percent of the University of Michigan’s freshman class, compared to 9.54 percent in 2012—a roughly 25 percent decline.”

Saying that the plurality had stacked the deck against racial minorities in Michigan, Sotomayor concluded that “Michigan’s public colleges and universities are less equipped to do their part in ensuring that students of all races are ‘better prepared … for an increasingly diverse workforce and society,’” quoting from Grutter.

Justice Elena Kagan did not participate in the decision of this case.

This decision is Schuette v. Coalition to Defend Affirmative Action, No. 12-682.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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