Michigan’s affirmative action ban is upheld


The U.S. Supreme Court affirmed last week the constitutionality of Michigan’s affirmative action ban in public university admissions policies.

In its 6-2 ruling, the Supreme Court said that voters have the right to determine whether a policy of race-based preferences should be continued.

Michigan voters approved Proposal 2 in 2006, which prohibited discrimination or the use of race or sex in university admissions.

The Sixth Circuit Court of Appeals later declared the amendment unconstitutional, saying that it violated the federal Constitution Equal Protection Clause.

The U.S. Supreme Court heard arguments in Schuette v. the Coalition to Defend Affirmative Action during October of last year.

The question here is not how to address or prevent injury caused on account of race, but whether voters may determine whether a policy of race-based preferences should be continued,” Justice Anthony Kennedy noted last week in the Supreme Court’s opinion.

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,” Kennedy added.

John Bursch, former Michigan solicitor general and currently an attorney with Warner Norcross, argued the case before the U.S. Supreme Court in the fall.

The court ruled 6-2 that Michigan’s constitutional amendment was valid,” Bursch said. “That means it is constitutional for Michigan voters to require equal treatment that does not violate equal protection.

“Going forward, Michigan’s public universities will not be able to use race or sex in university admissions criteria, although they will be able to take into consideration other things such as socioeconomic status and a person’s background — the holistic admissions approach that other states have used.”

Bursch said universities have been complying with the amendment during the legal process. 

Other states, including California, have enacted similar laws.

“The Federal Court of Appeals and the California Supreme Court upheld the California law,” Bursch said. “Michigan’s is virtually identical, and the Sixth Circuit struck it down, so you had a conflict between the Circuit Courts and the California Supreme Court as to whether these kinds of laws are constitutional.”

Justice Elena Kagan recused herself from the case. Justice Sonia Sotomayor wrote the dissenting opinion, which was signed on to by Justice Ruth Bader Ginsburg. 

Today’s decision does not impact the 2003 Grutter v. Bollinger decision, a landmark affirmative action case involving the University of Michigan Law School. 

In that case, the Court said public universities could take race into consideration in limited circumstances. 

The Court reaffirmed the Grutter decision as recently as last year in Fischer v. University of Texas at Austin, when it said greater analysis was needed from the lower court to determine if the University of Texas was in fact within its rights, using race in limited circumstances.

Public universities in states without laws against race-based preferences can continue to use race in admissions as one of several considerations.

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