No, the voter-approved ban is constitutional. This case isn't about whether affirmative action is good or bad; it's about who gets to decide. The Court ruled that the voters have the right to make that decision. Banning racial preferences is a policy choice, not a targeted attack on minorities, so it doesn't violate the Constitution's promise of equal protection.

No, and the question is obvious. The whole point of the Equal Protection Clause is to stop the government from treating people differently based on race. Michigan's law does exactly that. A law that requires equal treatment can't possibly violate the rule for equal treatment.

Yes, the ban is unconstitutional. Michigan voters changed the rules of the political game in a way that is uniquely unfair to racial minorities. Before, anyone could lobby the university boards to get a special admissions preference. Now, only those who want a race-based preference have to go through the nearly impossible process of changing the state constitution. This creates an unfair hurdle for minorities and violates the promise of equal access to the political process.

The Court says the Constitution and the Court's past rulings do not allow judges to overrule Michigan's law letting voters decide about racial preferences. This case is not about how to resolve the debate over affirmative action, but about who gets to resolve it. The Constitution is not violated because having a racially diverse student body is not the only goal schools can have, and voters have the right to pursue other goals. The Court is simply saying judges cannot take away the voters' right to choose which path to follow. The Court is not deciding whether racial preferences in admissions are constitutional or good policy.

The Chief Justice agrees, emphasizing that whether racial preferences in admissions are constitutional should be judged based on equal protection principles, not on what policies voters prefer. He notes that disagreement about whether affirmative action is good policy does not determine whether voters are allowed to prohibit it.

Justice Scalia agrees with the result, but argues that some past cases about the political process should be overruled as inconsistent with equal protection principles. He argues that equal protection prohibits racial classifications, so a law banning racial preferences in admissions does not violate equal protection. He would hold that a law prohibiting the state from classifying people by race does not itself classify people by race.

Justice Breyer agrees with the judgment, reasoning that the Michigan law does not violate equal protection because it does not create a racial classification or impose unique political burdens on minorities. He distinguishes this case from past cases, finding that the admissions policies affected by the law were adopted by unelected faculty and administrators, not by the legislature or local government. The law simply shifted policymaking from unelected officials back to the voters.

Justice Sotomayor disagrees, arguing that the majority misinterprets past cases about the political process. She argues that the Michigan law violates equal protection because it changes the political process along racial lines, placing unique burdens on racial minorities. By creating a much higher hurdle only for race-based admissions policies, the law makes it harder for minorities to achieve their goals. She criticizes the majority for ignoring the nation's long history of racial inequality and the importance of race-conscious admissions policies in promoting diversity in education.

Ending preferential treatment of individuals on the basis of their race, as a logical matter, cannot be considered discrimination and such measures have consequently been upheld by this and other courts.

In Schuette, the Court refused to strike down a voter-approved state constitutional amendment that barred public universities in Michigan from using race-based preferences as part of their admissions processes.

The Supreme Court has recently answered the question of "whether... voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions" in the affirmative.

Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of [] sensitivity on decent and rational grounds

—noting by plurality the "right 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

What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: "Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some …

The plaintiffs are certainly right on that point—affirmative action and other identity-based programs, in contexts ranging from contract bidding to higher education, have spawned sharply divided public debate and widespread, contentious litigation

Yet, as far as national government is concerned, which decisions a state wishes to make statewide, and which locally, are for the state to decide.

—it acts in a way Justice Kennedy has deemed "inconsistent with the underlying premises of a responsible, functioning democracy."

No. An amendment to the Michigan Constitution prohibiting the use of race-based preferences in public university admissions does not violate the Equal Protection Clause. The question is not about the merits of race-conscious admissions, but about who has the authority to decide that policy. The precedents of Hunter v. Erickson and Washington v. Seattle School Dist. No. 1, which established the 'political-process doctrine,' are inapplicable because they involved state actions that created a serious risk of causing specific racial injuries or were intended to encourage discrimination. Here, the Michigan amendment does not inflict an injury but instead prohibits the state from engaging in racial classifications, a policy choice the voters are constitutionally permitted to make through the democratic process. Extending the political-process doctrine to this case would improperly require courts to determine which policies serve a racial group's 'interest,' a venture that risks judicial overreach and perpetuating racial stereotypes.

No. The amendment does not violate the Equal Protection Clause. There is a legitimate, good-faith debate on the merits of racial preferences, and it is not 'out of touch with reality' to conclude they may do more harm than good by reinforcing the debilitating idea that minorities do not belong. The dissent's position creates an illogical asymmetry where university boards could permissibly choose to end race-conscious admissions, but the state's voters are forbidden from making the same policy choice.

No. The Michigan amendment does not violate the Equal Protection Clause; in fact, it mandates what the Clause requires. The Equal Protection Clause proscribes government discrimination on the basis of race. Therefore, a state constitutional provision that also forbids such discrimination cannot possibly violate the federal Constitution. The 'political-process doctrine' from Hunter and Seattle is atextual, unadministrable, and contrary to established equal protection jurisprudence, which requires proof of discriminatory intent for facially neutral laws, and should be overruled.

No. The amendment is consistent with the Equal Protection Clause in this context. The political-process doctrine of Hunter and Seattle does not apply because this case does not involve a reordering of the political process from one elected body to a higher, more remote one. Instead, the decisionmaking authority was moved from unelected university administrators and faculty to the voters, a politically responsive body. Extending the doctrine to cover shifts from administrative to political bodies would pose significant difficulties and risk discouraging policy experimentation, running counter to the principle of democratic decision-making.

Yes. The amendment violates the Equal Protection Clause by reconfiguring Michigan's political process to place a unique and substantial burden on racial minorities. Before the amendment, any group seeking a change in admissions policy could lobby the publicly elected university boards. Now, only those seeking to implement race-sensitive policies must undertake the far more onerous task of amending the state constitution. This creates a two-tiered system of political participation that the political-process doctrine, established in Hunter and Seattle, expressly forbids. The plurality wrongly recasts those precedents as being about discriminatory intent or specific injury when they were fundamentally about guaranteeing minorities equal access to the channels of political change.

The Court holds that there is no authority in the Constitution or in the Court's precedents for the Judiciary to set aside Michigan laws that commit the policy determination of racial preferences to the voters. This case is not about how the debate about racial preferences should be resolved, but about who may resolve it. There is no constitutional violation in the amendment because having a student body diverse in race is not the only policies the universities can pursue, and voters have the right to pursue other goals. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding here is not concerned with the constitutionality or the merits of race-conscious admissions policies in higher education. Rather, the question 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 Court rejects the view that the amendment violates equal protection because it has a racial focus and reorders the political process to place special burdens on minority interests. The Court reasons that the amendment reflects the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education and that there is no authority for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.

The Chief Justice concurs, stressing that the constitutionality of race-based preferences in admissions policies should be evaluated on equal protection grounds, not on voters' policy choices. He notes that disagreement about the merits of affirmative action policies does not control the question of whether voters can choose to prohibit them.

Justice Scalia concurs in the judgment, arguing that the political process doctrine from Washington v. Seattle School Dist. No. 1 should be overruled as inconsistent with equal protection jurisprudence. He contends that equal protection prohibits classifications based on race, and therefore a law prohibiting racial preferences in admissions does not violate equal protection. He would hold that a law that prohibits the state from classifying individuals by race a fortiori does not classify individuals by race.

Justice Breyer concurs in the judgment, reasoning that the amendment does not violate the Equal Protection Clause because it does not have the effect of creating a racial classification or of imposing burdens on minorities in the political process. He distinguishes the political process cases, finding that the admissions policies affected by the amendment were enacted by unelected faculty members and administrators, not by the state legislature or local government. The amendment simply shifted policymaking from unelected actors back to the voters.

Justice Sotomayor dissents, arguing that the plurality misreads the political process doctrine cases. She contends that the amendment violates the Equal Protection Clause because it reconfigures the political process along racial lines, placing unique burdens on racial minorities. By establishing a significantly higher hurdle only for race-sensitive admissions policies, the amendment makes it more difficult for minorities to achieve their goals. She criticizes the plurality for failing to acknowledge the nation's long history of racial inequality and for disregarding the importance of race-sensitive admissions policies in achieving educational diversity.

Schuette v. Coalition to Defend Affirmative Action

Case Podcast

Rule of Law:

The Legal Principle

Facts:

Procedural Posture:

How It Got Here

Issue:

Legal Question at Stake

Opinions:

Majority, Concurrences & Dissents

Analysis:

Why This Case Matters

Gunnerbot