- The Washington Times - Tuesday, April 22, 2014

The Supreme Court on Tuesday upheld a state electorate’s right to ban the use of race in public university admissions, a decision that rekindles the debate over affirmative action in an election year and could clear the way for ballot initiatives across America.

The justices, in a 6-2 ruling, said they had no authority to strike down a Michigan law that allowed voters to decide in 2006 that race-based preferences should play no role in public eduction, hiring and contracting.

Reaction to the court’s decision made it clear that decades-old battle lines over affirmative action are still in place and could influence decisions at the ballot box for years to come.

“The Constitution clearly prohibits discrimination based on race. Michigan voters embraced this very principle when they overwhelmingly decided to reject the use of racial preferences in university admissions,” said Heather Swift, campaign spokeswoman for Terri Lynn Land, a Michigan Republican running against Rep. Gary C. Peters, a Democrat, for a U.S. Senate seat.

“Today, the court wisely decided that this power, one that is consistent with the Constitution itself, lies with the voters,” she said.

The decision reversed a U.S. Circuit Court ruling that struck down Michigan’s ban on race-based preferences as a violation of the Constitution’s Equal Protection Clause. Yet the Supreme Court justices refused to wade into larger questions about opportunity and race.

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“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Justice Anthony M. Kennedy, a traditional swing vote, wrote for the court. “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.”

Arizona, California, Florida, Nebraska, New Hampshire, Oklahoma and Washington have laws similar to Michigan’s. The ruling Tuesday neither imperiled nor condoned the use of race-based preferences in these states, but it signaled that the high court would not stand in the way.

Justice Sonia Sotomayor issued a scathing, 58-page dissent that said the ruling “eviscerates an important strand of our equal protection jurisprudence.”

“A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities,” she wrote.

Justice Ruth Bader Ginsburg joined Justice Sotomayor in the dissent.

Justice Elena Kagan, who participated in the lawsuit as U.S. solicitor general, did not take part in the decision.

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The American Civil Liberties Union, which argued against the Michigan ban, said it made little sense to leave advantages in place for athletes or the children of alumni, but not minorities.

“This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students,” ACLU attorney Mark Rosenbaum said. “Today, the Supreme Court said they are not.”

White House press secretary Jay Carney said President Obama, traveling in Asia, had no immediate reaction to the opinion. Although the president “opposes quotas and thinks an emphasis on universal and not race-specific programs is good policy, considering race, along with other factors, can be appropriate in certain circumstances,” he said.

The case marked the court’s latest foray into affirmative action, in which employers, universities and other institutions provide special opportunities to historically disadvantaged groups, especially ethnic minorities. Some say affirmative action is a necessary tool to balance societal inequalities, while others say it discriminates on the basis of race.

Last year, the justices sent back to the lower courts a challenge to the University of Texas’ use of race-based criteria, saying affirmative action must be subject to “strict scrutiny.” That case involved Abigail Fisher, a white woman from Texas whose application was rejected by the university. She filed a lawsuit arguing that the university selected minorities with weaker qualifications.

A decade before that decision, the Supreme Court considered the University of Michigan’s use of race-based preferences in its undergraduate and law schools. The court invalidated some aspects but upheld a more limited use of the criteria. In 2006, 58 percent of Michigan voters approved Proposal 2, which banned the use of race as a factor in admissions at state universities, in public employment or in public contracting.

The group By Any Means Necessary, which took its moniker from a famous Malcolm X slogan, challenged the voter-approved prohibition, leading to the case before the court, Schuette v. BAMN.

“Today’s decision by the U.S. Supreme Court is monumental,” Michigan Attorney General Bill Schuette said. “The ruling is a victory for the Constitution, a victory for Michigan citizens, and a victory for the rule of law.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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