The U.S. Supreme Court has upheld Michigan’s constitutional ban on consideration of race in college admissions. The decision reverses a Sixth Circuit opinion that held that the state’s constitutional ban made it more difficult for minorities to achieve legislative goals and was, therefore, unconstitutional.
The Supreme Court’s opinion pointedly notes that the issue is not the merits of racial preferences, but rather only the authority of states to choose for themselves whether or not to embrace preference programs that are otherwise constitutionally acceptable. But Justice Kennedy, writing for a 6-2 majority, doth protest a bit too much.
Recent Supreme Court decisions seem to put racial preference programs on emergency life support. In 2003, the Supreme Court split the baby, ruling that a system that awarded bonus points to college applicants based on race was unconstitutional, but that a companion system that merely included race in a list of factors to be preferentially considered when evaluating law school applicants was permitted. The remaining ground for racial preference systems narrowed further in 2013, when the Supreme Court held that even systems that might be permitted under the framework it set in 2003 had to survive “strict scrutiny,” which normally sounds a constitutional death knell.
These legal developments were accompanied by political campaigns in several states, including California and Michigan, to enact state constitutional amendments barring their university systems from using even the limited and generalized consideration of race that the Supreme Court had allowed to continue. The approach used by the Sixth Circuit — placing racial preferences behind a protective wall to insulate them from this growing political backlash — seemed to many advocates of so-called “affirmative action” to be their last hope. It’s gone now.
Edit: Professor William Jacobson notes that critics of the Supreme Court’s decision (and supporters of the Sixth Circuit’s approach) create, in essence, a “ratchet theory,” where once a racial preference system is enacted, any attempt to repeal it would be constitutionally prohibited. His analysis seems legitimate.
Jacobson also highlights the best-line winner (Justice Scalia): Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.