Supreme Court

Supreme Court Upholds Michigan Affirmative Action Ban

Proposal 2 was passed in 2006


The Supreme Court has upheld Michigan's ban on affirmative action in public colleges in a 6-2 decision on Schuette v. Coalition to Defend Affirmative Action. The ban was implemented after the passage of Proposal 2, a 2006 ballot initiative banning public college's from giving preferential treatment to minority applicants. Justice Kagan was recused from the case, presumably because she worked on the case when she was U.S. solicitor general. Justices Sotomayor and Ginsburg dissented.

Last year the the United States Court of Appeals for the Sixth Circuit ruled in an  8-7 decision that Proposal 2 violated the U.S. Constitution's Equal Protections Clause.

New Hampshire, California, Florida, Washington, Arizona, Nebraska, and Oklahoma have similar bans on affirmative action in place.


NPR notes that in the majority opinion Justice Kennedy said:

Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged.

NPR also says that in reading her dissent from the bench Justice Sotomayor said:

without checks, democratically approved legislation can oppress minority groups.

The ruling will not come as a surprise to the Cato Institute's Ilya Shapiro, who said the following in October:

In no conceivable world can the Equal Protection Clause – the constitutional provision that bans racial discrimination – prohibit a state law that bans racial discrimination. The Supreme Court should and almost certainly will reverse the lower court's ridiculous judgment to the contrary, and will likely do so with a great degree of unanimity.

Writing at about the case for SCOTUS Blog University of Chicago law professor Richard Epstein said that although he wouldn't have voted for Proposal 2, "Any public institution that employs either a colorblind or affirmative action policy within the institutions that it supports and operates should be responsive to the will of popular majorities in a democratic society." From SCOTUS Blog:

To repeat, I think that Proposal 2 is a mistake, and would vote against it.  But I do not think that we have reached the point where colorblind legislation should be regarded as unconstitutional because of its supposed effect on the political process.  Any public institution that employs either a colorblind or affirmative action policy within the institutions that it supports and operates should be responsive to the will of popular majorities in a democratic society.  Where the state loses its power is in its ability to force private institutions to follow what the public dictates.  I think the endless array of fair housing laws are indeed unconstitutional except in those situations, which almost never arise, where a credible claim can be made that a given party has monopoly power in some given market.  That was the older rule that used a nondiscrimination rule to offset monopoly power, but never otherwise.  It is a long argument, for another day.  Subject to this qualification, the public/private distinction should have some real bite.  I believe that this issue will come back to the Supreme Court in some form no matter how the Court comes out in Schuette.

In October, Reason Foundation's Shikha Dalmia wrote about how Michigan's Proposal 2 doesn't discriminate against racial minorities but rather discriminates "against racial discrimination." From USA Today:

Last November, however, the 6th Circuit Court ruled that this ban on discrimination was itself discriminatory. Why? Essentially, because it would require minorities who want preferential treatment to amend the Constitution. However, other groups — veterans, parents, firefighters — need only go through normal legislative channels to promote their interests. This "political restructuring" supposedly burdens the democratic rights of minorities and violates the 14th Amendment.

It's an interesting argument, but wrong. As University of San Diego law professor Gail Heriot notes, Prop. 2 doesn't discriminate against racial minorities but against racial discrimination. It doesn't just bar blacks from seeking special preferences in college admissions but whites, too. Each can, however, petition for, say, greater funding for sickle-cell anemia (which particularly afflicts blacks) or skin cancer (which disproportionately affects whites).

In other words, every racial group is equally encumbered when promoting racial privileges and equally unencumbered when promoting non-racial interests.

Dalmia has also noted that judges will never be able to eliminate affirmative action from higher education.

More from Reason on affirmative action here

Read the Court's opinion below:

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  1. This basically affirms what common sense tells anyone capable of objective analysis: using racial discrimination to remedy past racial discrimination is ridiculous. Slavery was worse than discrimination. Shall we enslave all living white people to remedy the past? No one would seriously consider that proposal, but it’s the same logic behind affirmative action. The principle is preposterous in both cases.

    1. The Supreme Court has, in the past, upheld racially discriminatory remedies for racial discrimination. But even if those cases, they emphasized strict scrutiny.

  2. …”It’s an interesting argument,”…

    The same way the drunk guy on the corner is “interesting”; bat-shit crazy.

    1. Sevo, I think you’ve reached your post limit. Time to let some minorities post on this thread. I happen to know that some ancestors of yours prevented racial minorities from posting on similar message boards.

      1. iEagleHammer has morphed into shorter pajama boy

  3. BAMN’s argument was essentially that blacks aren’t allowed to lose elections or legislative battles. What a load of shit. what an entitlement mentality! Their stupid racial spoils system was rejected by the voters, as it should have been and as it will be everywhere eventually.

  4. The AA debate is coming to an end. The next controversy will involve the increasing number of foreign students (“out of state”, as it were) being admitted to these schools.

    The racist right wingers will insist that “we grew up in the state and paid taxes, we deserve those spots.”

    They fail to realize that they are Americans, meaning it’s only fair that students from Venezuela and India deserve a shot at better life than their entitled asses.

    90% of Asians in the OC are so white that they can’t even do proper origami. If they were less white, maybe the UCs wouldn’t accept so many foreign students to “diversify” the field. Accept your fate.

    1. “The racist right wingers will insist that “we grew up in the state and paid taxes, we deserve those spots.””

      Uh, it’s the lefties who are claiming squatters’ rights to SF:
      “Do people have a right to live in San Francisco?”…..francisco/

      And on someone else’ dime.

  5. I think it’s hilarious how much effort these people put into obtaining some imaginary utopian version of “equality”. They’ll only ever make things worse. Period.

  6. F*ck you massa. Massa, you can s*ck my motherf*ckin’ d*ck.

    – Eddie Murphy

  7. Sotomayer and Ginsburg? That’s unbelievably not shocking!

  8. I want to live in a colorblind world where people who identify as Black or Hispanic are preferentially admitted to universities.

    1. Racism re-packaged is like sewage re-packaged… well…okay. it’s not like sewage re-packaged that would still be awful.

  9. Let’s have an admission test. If there are 100 slots for Freshman year, the Top 100 that pass the test, regardless of any other criteria, should get it.

    What’s wrong with that?

    If Race is an arbitrary Criteria that is illegal for College Admission officers use, then so are any other Criteria that is not merit based.

    1. And, if we have a tie between a white kid and a minority, go ahead and give it to the White Kid. This way we can RIGHT the atrocities that where committed against white people all these years.

      1. If there is a tie the only fair thing is to have gladiatorial combat to the death for that last slot.

        Betting will be allowed. 10% of the proceed will go to pay for the Obamacare deductible so the winner can afford medical treatment.

        The body parts of the loser will be sold on the Chinese black market to set up a scholarship fund for the winner.

  10. Granted I thankfully live so far up-state few liberals dare to tread; given the AA decision, the change to right-to-work, Democrat stronghold on Governor and Legislature only a distant memory, strong possibility of a Republican senator in ’16 and the death of Detroit, I have high hopes for my home state.

    But only if global warming continues unabated.

  11. In October, Reason Foundation’s Shikha Dalmia wrote about how Michigan’s Proposal 2 doesn’t discriminate against racial minorities but rather discriminates “against racial discrimination.”

    no, affirmative action discriminates against racial MAJORities. its racism, bland pure and simple, in law.

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