University of Notre Dame law professor Jennifer Mason McAward said the opinions by five justices point “to a much more nuanced and heated debate among the justices regarding the permissibility and wisdom of racial preferences in general.”
In 2003, the Supreme Court upheld the consideration of race among many factors in college admissions in a case from Michigan.
Three years later, affirmative action opponents persuaded Michigan voters to change the state constitution to outlaw any consideration of race.
The 6th U.S. Circuit Court of Appeals said the issue was not affirmative action, but the way in which its opponents went about trying to bar it.
In its 8-7 decision, the appeals court said the provision ran afoul of the Equal Protection Clause of the U.S. Constitution’s 14th Amendment because it presented an extraordinary burden to affirmative action supporters who would have to mount their own campaign to repeal the constitutional provision. The Supreme Court said the appeals court judges were wrong to set aside the change as discriminatory.
But Sotomayor took up their line of reasoning in her dissent. She said University of Michigan alumni are free to lobby the state Board of Regents to admit more alumni children, but that the regents now are powerless to do anything about race-sensitive admissions.
Breyer parted company with other liberal justices Sotomayor and Ginsburg, voting to uphold the Michigan ban because it effectively took power from faculty members at the state colleges and gave it to the voters, “from an unelected administrative body to a politically responsive one.” Unlike the conservative justices whom he joined Tuesday, Breyer said he continues to favor “race-conscious programs” in education.
Black and Latino enrollment at the University of Michigan has dropped since the ban took effect. At California’s top public universities, African-Americans are a smaller share of incoming freshmen, while Latino enrollment is up slightly, but far below the state’s growth in the percentage of Latino high school graduates.
The case was the court’s second involving affirmative action in as many years. Last June, the justices ordered lower courts to take another look at the University of Texas admissions plan in a ruling that could make it harder for public colleges to justify any use of race in admissions.
Tuesday’s case is Schuette v. Coalition to Defend Affirmative Action, 12-682.
Follow Mark Sherman on Twitter at: @shermancourt