A Blow To Race-Based Admissions

This morning the Supreme Court issued a 6-2 ruling (pdf) upholding a Michigan referendum banning affirmative action in college admissions, reversing a 6th Circuit decision:

Justice Kennedy penned the plurality opinion for the court, joined by Justices Alito and Chief Justice Roberts, arguing that neither the Constitution nor previous court precedent gives the courts the authority to overturn a voter-approved prohibition on race-conscious admissions policies. Justices Breyer, Scalia, and Thomas filed concurring opinions, while Sotomayor wrote the dissenting opinion. Justice Ginsburg joined in the dissent, while Justice Kagan was recused from the case and did not vote.

“It is important to note what this case is not about,” Kennedy wrote in his opinion. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.” The Coalition to Defend Affirmative Action had challenged the state ban on constitutional grounds, arguing that the voter ban violated the equal protection clause of the Fourteenth Amendment.

Nora Caplan-Bricker explains the likely repercussions of the ruling:

[I]ts most immediate impact will be in the six other states that, like Michigan, have passed ballot initiatives banning affirmative action: Arizona, Florida, Nebraska, New Hampshire, Oklahoma and Washington.

Any attempt to challenge those bans is now “futile,” Robert M. O’Neil of The University of Virginia School of Law wrote in an e-mail. The ruling could also inspire other states to hold ballot initiatives—or could spur out-of state activists to look for places propose them, said Michael A. Olivas of the University of Houston Law Center.

The opening for activists could stretch beyond racial preference in admissions. Barbara A. Lee, an attorney who teaches at Rutgers’ School of Management and Labor Relations, predicted the ruling would “encourage those who oppose any form of preference (possibly even those related to social class, income, geography, etc.) to organize a grassroots movement to eradicate by ballot initiative the policies that educators have developed to broaden the scope of educational opportunity for groups traditionally excluded from access to public higher education, either by law or by poverty.”

When the Supremes took up the case last year, Bazelon called it “a case that liberals will lose, and probably deserve to lose”:

It’s about whether states may ban schools from using affirmative action. That’s what Michigan did by passing a ballot initiative in 2003 called Proposal 2. I wouldn’t have voted for it. But should the Supreme Court say that when voters decide to restrict the use of affirmative action, they have violated the Constitution? There is no way that the conservative majority of the Supreme Court will answer yes. And that is probably the correct outcome in terms of policy. To say so deviates from the usual liberal line on affirmative action, laid out today in a New York Times editorial.

And yet: The current huge fairness problem in university admissions isn’t race-based. It’s class-based. And it is at the schools of the 10 states across the country that have banned affirmative action where the most interesting socioeconomic alternatives are unfolding. The Supreme Court won’t stand in the way of those experiments. And it shouldn’t.