Democratic views on affirmative action

The Supreme Court upheld, by a 6-2 vote, a 2006 amendment to the Michigan state constitution banning race-sensitive admissions policies in public universities. With Justice Elena Kagan recused (she had worked on the case as United States solicitor general), eight justices took four different views on whether the federal constitution’s 14th-amendment guarantee of “the equal protection of the laws” permits Michigan voters to end race-based affirmative action programmes in their state. This decision will come as good news for opponents of affirmative action in seven other states that have enacted similar bans.

Let me briefly characterise those four positions in Schuette v Coalition to Defend Affirmative Action, before explaining why—despite the moral pull of Justice Sonia Sotomayor’s impassioned 58-page dissent, and the troubling declines in minority enrollments that have followed the ban—Justice Stephen Breyer got the law right in his concurrence.

Justice Anthony Kennedy wrote for himself, Justice Samuel Alito and Chief Justice John Roberts in announcing the judgment of the Court. While race may be used as one factor in college admissions, Justice Kennedy wrote, nothing in the Constitution requires affirmative action. Voters are free to ban it if they wish. The sordid history of race in America “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, ” Justice Kennedy wrote. Michigan voters in 2006 were exercising “the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process”; they were not unfairly targeting minorities. Two cases from 1969 and 1982 in which the Court struck down initiatives blocking fair-housing (Hunter v Erickson) and school-desegregation (Washington v Seattle), Justice Kennedy pointed out, address “quite different issues” and are not relevant to the Michigan ban on considering race in university admissions.

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