Michigan Ban on Affirmative Action Backed by High Court

     WASHINGTON (CN) - The ban against affirmative action at Michigan public colleges and universities and in government hiring is a matter of states' rights, the Supreme Court ruled Tuesday.
     It was the admissions systems at the University of Michigan, at both the undergraduate and law school level, that first drew the Supreme Court's attention to affirmative action in 2003. In two decisions, the court said "universities cannot establish quotas for members of certain racial groups," but that race or ethnicity could be used "more flexibly as a 'plus' factor in the context of individualized consideration."
     Michigan voters approved a statewide ballot proposal three years later "to prohibit all sex- and race-based preferences in public education, public employment, and public contracting."
     Once passed, Article I, Section 26, of the Michigan Constitution, eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions for Michigan's public colleges and universities. Yet, no other admissions criteria - for example, grades, athletic ability, or family alumni connections - suffered the same fate.
     For public colleges and universities or their boards to revisit the issue of affirmative action, and only that issue, voters would first have to repeal or modify the amendment.
     Several interest groups and individuals immediately sued then-Gov. Jennifer Granholm and the governing boards of various state schools. The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality said Proposal 2 violated the U.S. Constitution and federal statutory law.
     A group of University of Michigan faculty members, prospective and current students filed a similar federal complaint against Gov. Granholm. Their case was consolidated with that of an applicant to the University of Michigan Law School and Toward a Fair Michigan, a nonprofit corporation formed to ensure implementation of Proposal 2.
     In both cases, Michigan's then-Attorney General Michael Cox intervened and replaced Granholm as the representative of the state.
     After a 2-1 ruling in the 6th Circuit for the amendment's opponents, the full court again sided against the state.
     The Supreme Court took up the case last year, noting that Justice Elena Kagan would not participate in the consideration or decision of the case.
     A plurality of the court reversed Tuesday, with three separate concurring opinions to the lone dissent from Justices Sonia Sotomayor and Ruth Bader Ginsburg.
     "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," according to the lead opinion by Justice Anthony Kennedy, joined only by Chief Justice John Roberts and Justice Samuel Alito.
     They noted that Proposal 2 merely reflects part of "the national dialogue regarding the wis­dom and practicality of race-conscious admissions policies in higher education."
     "The respondents in this case insist that a difficult ques­tion of public policy must be taken from the reach of the voters, and thus removed from the realm of public discus­sion, dialogue, and debate in an election campaign," Kennedy wrote.
     But the plurality said that position raises "serious First Amendment implications" and "is inconsistent with the underlying premises of a responsi­ble, functioning democracy."
     "It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds," Kennedy wrote. "The process of public discourse and political debate should not be foreclosed even if there is a risk that during a pub­lic campaign there will be those, on both sides, who seek to use racial division and discord to their own political ad­vantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the nation and its people. These First Amendment dynamics would be disserved if this court were to say that the ques­tion here at issue is beyond the capacity of the voters to debate and then to determine."
     Sotomayor's dissent more than triples Kennedy's 18-page opinion and is also longer than the combined submissions from all the concurring justices.
     "This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities," she wrote, joined by Ginsburg. "Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan's public colleges and universities - including race-sensitive admissions policies - were in the hands of each institution's governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michi­gan's institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. And this court twice blessed such efforts - first in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), and again in Grutter v. Bollinger, 539 U. S. 306 (2003), a case that itself concerned a Michigan admissions policy."
     Rather than relying on lobbying or public awareness campaigns to eliminate race-conscious admissions policies, the voters here "changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities."
     Their efforts made racial consciousness the only admissions consideration that must be changed by amending the state constitution.
     "Our precedents do not permit political restructurings that create one process for racial minorities and a sepa­rate, less burdensome process for everyone else," Sotomayor wrote.
     By preaching about self-government, "the plurality's decision fundamentally misunderstands the nature of the injustice worked by §26," she added.
     "While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process," the dissent states. "It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals - here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes consti­tutional protections long recognized in our precedents."
     Here opponents of affirmative action in Michigan rigged the rules of the game to ensure their success, according to the dissent.
     "Today's decision eviscerates an important strand of our equal protection jurisprudence," Sotomayor concluded. "For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government."