April 22, 2014

Supreme Court Decides Schuette v. BAMN

On April 22, 2014, the Supreme Court decided Schuette v. BAMN, No. 12-682, holding that a ballot initiative amending the Michigan constitution to prevent discrimination against or preferential treatment of individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

Following the Court's decision in Gratz v. Bollinger, 539 U.S. 244 (2003), which invalidated the explicit consideration of race in the University of Michigan's undergraduate admissions process, the university revised its process but continued to allow limited use of race-based preferences. Following a statewide debate, Michigan voters in 2006 adopted an amendment to the state constitution prohibiting race-based preferences in the admissions process.

The amendment was challenged in two cases that were consolidated by the U.S. District Court for the Eastern District of Michigan. The district court granted summary judgment to Michigan, upholding the amendment. A panel of the Sixth Circuit Court of Appeals reversed, holding that the amendment violated principles articulated in Washington v. Seattle, 458 U.S. 457 (1982). The Sixth Circuit, sitting en banc, affirmed the panel decision.

The Supreme Court granted certiorari and reversed the Sixth Circuit. In a plurality opinion, Justice Kennedy noted that this case "is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education." Instead, the question presented concerns "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." The plurality contrasted this case with Seattle and its predecessors, characterizing them as cases in which state action had the serious risk, if not the purpose, of causing specific injuries on account of race. Here, the plurality construed the issue as being whether a policy of race-based preferences should be continued.

The plurality thus rejected the Sixth Circuit's reliance on Seattle and limited that case's holding. Noting that, according to the argument under 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," the plurality stated that "[t]he expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court's settled equal protection jurisprudence." The expansive language of Seattle "does not provide a proper guide for decisions and should not be deemed controlling.

The plurality instead focused its reasoning on the political process. By approving the amendment, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In doing so, they bypassed elected officials "who were deemed not responsive to the concerns of a majority of voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues." The plurality emphasized that freedom does not stop with individual rights. "Our constitutional system embraces, too, the rights of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure." And the plurality declared that there is a fundamental right "held not just by one person but by all in common…to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process."

Because the plurality found that the political restriction at issue was not designed or used to encourage infliction of injury by reason of race, the electorate's instruction to governmental entities not to embark upon the course of race-defined and race-based preferences is permissible. "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."

Justice Kennedy announced the judgment of the Court and delivered an opinion in which Chief Justice Roberts and Justice Alito joined. Chief Justice Roberts also filed a concurring opinion. Justice Scalia filed an opinion concurring in the judgment, in which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion in which Justice Ginsburg joined. Justice Kagan took no part in the consideration or decision of the case.

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