What came as a blow to the 1960s civil rights movement-era system of race-based preferences in admissions is the latest verdict by the US Supreme Court, which has upheld a voter-approved ban on racial preferences in university admissions in the US state of Michigan. The Court, in a 6-2 ruling, while upholding Michigan's ban on using race as a reason in college admissions said voters had the right to forbid public universities from taking race into account in admissions decisions. The justices said that it was wrong on the part of lower federal court to set aside the change as discriminatory. The Court in this case had to determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, was invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
Justice Anthony Kennedy in the majority opinion in the case of Schuette v Coalition to Defend Affirmative Action wrote that this case was not about how the debate about racial preferences should be resolved, but it was about who may resolve it. He stated that the courts might not disempower the voters from choosing which path to follow. The contention made by civil rights groups that Michigan's constitutional amendment — Proposal 2, sanctioned by voters in 2006 — prohibiting college admissions decisions based on race imposed burdens on racial minorities in violation of the U.S. Constitution's equal protection guarantee, was rejected by the justices. Kennedy, along with Chief Justice John Roberts and Justice Samuel Alito, said that an appeals court that threw out the law did not have the right to do so. Justices Sonia Sotomayor and Ruth Bader Ginsburg were the two liberal members of the court who gave dissenting votes. According to Sotomayor the court damaged its own precedents, which state that the majority cannot suppress minorities' right to participate in the political process.
A separate opinion was written by Justice Antonin Scalia, joined by Justice Clarence Thomas, in which he said that challenges to laws that rest on equal protection claims must show that the law reflects a discriminatory purpose. He said that the Michigan law did not. The only member of the liberal wing of the court to join the majority was Justice Stephen Breyer, who wrote that the ban was constitutional because the prohibition gave voters, rather the university officials, the right to decide whether to adopt race-conscious admissions policies. Recusing herself was Justice Elena Kagan, who had worked on the case when she was solicitor general. According to a statement released by the American Civil Liberties Union, Kevin Gaines, an African-American studies professor at the University of Michigan and one of the Plaintiffs contending for the removal of the ban, was disappointed at the decision. Also criticizing the decision was Mark Rosenbaum, a lawyer for the ACLU who contended against the ban in the case.
In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U. S. 244. The law school admission plan was addressed in Grutter v. Bollinger, 539 U. S. 306. Each admissions process allowed the clear consideration of an applicant's race. In 2006, voters passed a constitutional amendment that barred the state from discriminating against or granting preferential treatment for any individual or group on the basis of race, sex, color, ethnicity, or national origin. A group called the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary challenged the 2006 constitutional amendment. The contention of the group and other associated Plaintiffs was that it refused minority students the chance to propose to the universities' governors a system of race-based preferences needed to admit substantial numbers of minority students.
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