On April 22, 2014, the United States Supreme Court upheld Michigan’s Proposal 2 which amended the State’s constitution by banning the use of race in the admissions decisions of public universities. The Court’s decision in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary) continues the decades-long battle over racial equity and its place in schools and universities. While the Court did not rule that the consideration of race in admissions is unconstitutional, neither did the Court rule that the banning of race as a consideration is unconstitutional. The immediate implications of the Court’s ruling is that similar bans in California, Washington, Arizona, and Nebraska will no doubt remain in place and other states may follow suit.
In Schuette, the plaintiffs argued that Proposal 2 violated the Constitution by effectively preventing people of color from changing the law to permit race-conscious admissions. In the 1960s, the Court in Hunter v. Erickson and Washington v. Seattle School District invoked the “political process” doctrine to strike down voter referenda when the Court determined that those state constitutional amendments had in effect flipped the political process by forcing minorities – and no other group – to now have to convince a majority of state voters to pass another constitutional amendment to protect their interests. In the Seattle case, the Court dealt with the issue of school segregation.
The decision in Schuette was by a 6 to 2 vote. Justice Kennedy wrote an opinion upholding Proposal 2 and giving certain reasons therefor. Two other Justices concurred in the approval and the reasoning. Three additional Justices agreed with upholding the Proposal, but for different reasons. Two Justices dissented. One Justice did not participate. Justice Kennedy wrote:
In essence, according to the broad reading of Seattle, any state action with a ‘racial focus’ that makes it ‘more difficult for certain racial minorities than for other groups’ to ‘achieve legislation that is in their interest’ is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
In other words, the state action here is not the kind which is presumptively correct and should be overruled only if there are strong reasons to do so. Rather, the approach to the issue should be the normal one of simply balancing the factors pro and con.
The Court’s decision in Schuette narrows the political process doctrine to cases where there is a specific intent to inflict harm on racial minorities. While the Court stressed the importance of respecting voters’ rights, the dissent argued that it will now be harder for minorities to participate in the political process.
In her dissent, Justice Sotomayor wrote:
Today’s decision eviscerates an important strand of our equal protection jurisprudence. 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.
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