I previewed the oral arguments in this case in an Alert dated 10/22/13 and, quite frankly, I got it wrong.  I thought it had a chance of being a 4-4 deadlock (Justice Kagan playing no role in the ruling).  Instead it was a 6-2 ruling with Kennedy, Alito, Breyer, Roberts, Scalia and Thomas in the majority and Sotomayor and Ginsburg in the minority. My thought at the time was that Breyer would likely join Sotomayor and Ginsburg and that Kennedy might make it a deadlock. Kennedy delivered the opinion of the court, which was that the Michigan electorate has the right to determine that race preference in higher education is illegal under the state constitution. Kennedy emphasized that the case was not about whether race-conscious policies are forbidden under the Equal Protection Clause of the 14th Amendment. but rather the conditions under which an electorate may prohibit such policies.  Accordingly:


Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ---, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.


The justices considered prior precedents in related Supreme Court cases, most notably Reitman v. Mulkey (1967) [387 U. S. 369], Hunter v. Erickson (1969) [393 U. S. 385] & Washington et al., v. Seattle School District No. 1 (1983) [356 U.S. 457].  Mulkey featured a voter-enacted amendment preventing state legislative interference with an owner’s right to decline to sell or rent property on account of race and Hunter featured a challenged to an amendment to a city charter on grounds that it nullified the city’s fair housing act.  Both initiatives were struck down.  The Seattle case featured a challenge to forced busing for purposes of integration that was successful.  The facts of these cases, though interesting in their own right, all pointed to the same issue --- that the rulings in question were based on ordinances or amendments that directly affected the rights of minorities (Mulkey & Hunter) or non-minorities (Seattle).  Although the Majority justices were not 100% in agreement with how to interpret these cases, they did agree that none of them applied directly to the Schuette case because the Michigan amendment, as written, is race neutral.


In short, although Grutter v. Bollinger (2003) [539 U. S. 306] (key takeaway:  that diversity is a compelling government interest that may be addressed by narrowly tailored solutions) is still good law under the 14th Amendment, it is just as clearly not “guaranteed” law.  Michigan now becomes the 7th state with voter-approved bans on race preference in higher education.


By Art Gutman, Ph.D., Professor, Florida Institute of Technology


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