The United States Supreme Court continues to whittle around the edge of the basic constitutional question concerning affirmative action programs – do the equal protection guarantees of the Fourteenth Amendment allow or prohibit affirmative action programs that explicitly rely on race or gender? Though it would seem that five (Roberts, Kennedy, Alito, Scalia, and Thomas) of the Court’s nine justices are strongly philosophically inclined against affirmative action programs, the Court’s decisions in recent years have only pared back rather than eliminated affirmative action programs.
And so it was on April 22, 2014, with the release of the Court’s opinion in Schuette v. Bamn, the latest installment of the Court’s affirmative action jurisprudence. At issue in the case was a ballot measure adopted by a 58-42 margin by Michigan voters in 2006. The ballot measure prohibited state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in employment and in public education. A coalition of different groups challenged the ballot measure, arguing that the ballot measure changed the existing political process in Michigan in a manner that burdened racial minorities.
By a 6-2 margin, the Supreme Court upheld the constitutionality of the ballot measure. The lead opinion, written by Justice Anthony Kennedy, got right down to business by announcing what the case was not about: “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 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.”
Justice Kennedy’s opinion continued with an expression of general distrust of affirmative action programs: “In a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.”
Turning to the ballot measure itself, Justice Kennedy wrote that the measure’s prohibition on the use of race- and gender-based preferences was a permissible political decision for the electorate to make: “By approving [the ballot measure], the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.
“Our constitutional system embraces the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.
“Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
“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. 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.”
Schuette v. Bamn, No. 12-682 (April 22, 2014).