Supreme Court: States Can Ban Affirmative Action

The ruling doesn't widely outlaw affirmative action, but allows states to choose to do so.

Protesters in support of affirmative action gather outside the Supreme Court Oct. 15, 2013, in Washington, D.C.

Protesters in support of affirmative action gather on Oct. 15, 2013, outside the Supreme Court in Washington, D.C. The court's Tuesday ruling to allow the banning of affirmative action in public college admissions stems from a 2006 Michigan ballot measure. 

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The Supreme Court on Tuesday ruled states can ban affirmative action in public college admissions without violating the Constitution. 

The 6-2 decision stems from a 2006 ballot measure in Michigan that banned affirmative action in the state constitution and was supported by 58 percent of voters. It was subsequently challenged by opponents who said it unfairly targets minorities. 

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, while Justice Elena Kagan recused herself from the case. Speaking aloud, Sotomayor said her colleagues "fundamentally misunderstood the nature of the injustice." The white majority, she said, is "rigging the rules of the game to ensure its perpetual success."

[READ: Majority of Americans Oppose Affirmative Action in College Admissions]

Although the new ruling does not widely outlaw affirmative action practices, it allows the eight states that do ban such practices – Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma and Washington – to keep those laws in place.

"There is no authority in the Constitution of the U.S. or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters," said Justice Anthony Kennedy, writing the opinion for the majority. "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."

The U.S. Court of Appeals for the Sixth Circuit ruled in November 2012 that the Michigan law was unconstitutional because it violated the Equal Protection Clause of the 14th Amendment.

The Supreme Court avoided a major ruling on affirmative action in June, in Fisher v. University of Texas, when it punted that case back to a lower court, saying the federal appeals court in New Orleans should take a closer look at the admissions policy in question.

Following the court's decision in Fisher, a July Gallup poll found 67 percent of American adults oppose affirmative action college admissions policies. Most polled said an applicant should be admitted to a college only based on merit, even if that means there would be fewer minorities on campus.

[MORE: University of Texas Young Conservatives Group Cancels 'Catch an Illegal Immigrant' Game]

The last significant ruling on the issue of affirmative action in college admissions policies came in 2003 in another case from Michigan (Grutter v. Bollinger), in which the justices upheld an affirmative action admissions policy at the University of Michigan Law School.

Justice Antonin Scalia, concurring with the majority opinion, referenced the 2003 case, saying the Equal Protection Clause cannot forbid "what its text plainly requires." He cited the Grutter v. Bollinger case saying, "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception." 

"It is precisely this understanding – the correct understanding – of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law," Scalia argued. "By adopting it, they did not simultaneously offend it."

Were a public university to defend its use of a race-based admissions policy "on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional," Scalia wrote.

Sotomayor, writing the dissenting opinion, said the decision allows "the majority free rein to erect selective barriers against racial minorities." She argued that policies at Michigan's public universities should be left in the hands of the schools' elected boards – whose members are nominated by political parties – as they were before the ballot measure took effect.

"Today’s decision eviscerates an important strand of our equal protection jurisprudence," Sotomayor wrote. "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."

[ALSO: Obama Administration OKs 'Lawful' College Affirmative Action Programs]

Mark Rosenbaum, an attorney from the American Civil Liberties Union who argued the case, said in a statement that the Michigan amendment is unfair because it prevents students from asking universities to consider race in admissions, while factors such as "legacy status, athletic achievement and geography" are still considered. 

"This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students," Rosenbaum said. "Today, the Supreme Court said they are not."



Updated on April 22, 2014: This story has been updated to include new information.