WASHINGTON — In a fractured decision that revealed deep divisions over what role the judiciary should play in protecting racial and ethnic minorities, the Supreme Court on Tuesday upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities.
The 6-to-2 ruling effectively endorsed similar measures in seven other states. It may also encourage more states to enact measures banning the use of race in admissions or to consider race-neutral alternatives to ensure diversity.
States that forbid affirmative action in higher education, like Florida and California, as well as Michigan, have seen a significant drop in the enrollment of black and Hispanic students in their most selective colleges and universities.
In five separate opinions spanning more than 100 pages, the justices set out starkly conflicting views. The justices in the majority, with varying degrees of vehemence, said that policies affecting minorities that do not involve intentional discrimination should be decided at the ballot box rather than in the courtroom.
But Justice Sonia Sotomayor, in the longest, most passionate and most significant dissent of her career, said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.”
Her opinion, longer than the four other opinions combined, appeared to reflect her own experiences with affirmative action at Princeton and Yale Law School. “I had been admitted to the Ivy League through a special door,” she wrote in her best-selling memoir, “My Beloved World.” For years, she wrote, “I lived the day-to-day reality of affirmative action.”
In contrast to Justice Sotomayor’s outraged dissent, Justice Anthony M. Kennedy’s controlling opinion for three justices took pains to say that the decision was a modest one.
“This case is not about how the debate about racial preferences should be resolved,” he wrote, in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”
His announcement of the decision from the bench was businesslike. Signaling deep displeasure, Justice Sotomayor summarized her dissent from the bench, an unusual move that happens perhaps three times a term. She said the initiative put minorities to a burden not faced by other college applicants. Athletes, children of alumni and students from underrepresented parts of the state, she said, remained free to try to persuade university officials to give their applications special weight. “The one and only policy a Michigan citizen may not seek through this long-established process,” she wrote, “is a race-sensitive admissions policy.” That difference, she said, violates the Constitution’s equal protection clause.
“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent.
Justice Sotomayor recast the line. “The way to stop discrimination on the basis of race,” she wrote, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
Chief Justice Roberts responded in a brief concurrence, saying that affirmative action, and the stigma that he said could accompany it, may do more harm than good. “People can disagree in good faith on this issue,” he added, “but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
In earlier cases, including one from last June challenging the admissions policies of the University of Texas, the court has said that race-conscious selection can be constitutionally permissible in states that wish to use them. In a concurrence, Justice Antonin Scalia, joined by Justice Clarence Thomas, said those decisions were wrong, and he suggested that they were in peril. He added that the question in Tuesday’s case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, was laughably easy.
“Even taking this court’s sorry line of race-based admissions cases as a given,” he wrote, “I find the question presented only slightly less strange: Does the equal protection clause forbid a state from banning a practice that the clause barely — and only provisionally — permits?”
He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”
“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”
The most surprising opinion came from Justice Stephen G. Breyer, who abandoned his usual liberal allies to vote with the majority, although he did not adopt the majority’s reasoning. The Constitution, he said, permits but does not require states to use race-conscious admissions for educational diversity.
In general, he said, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”
Justice Elena Kagan recused herself, presumably because she had worked on the case as United States solicitor general.
The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.
Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the State Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.
In 2012, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled by a vote of 8 to 7 that the initiative violated the federal Constitution’s equal protection clause. The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.
Justice Sotomayor agreed, saying citizens seeking to have the state’s public universities adopt race-conscious admissions plans had to “undertake the daunting task of amending the State Constitution.”
Justice Kennedy said that was as it should be.
“Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice,” he wrote. “That history 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.”
By ADAM LIPTAKAPRIL
New York Times