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Monday, October 24, 2016

By Michael Doyle, McClatchy Washington Bureau

WASHINGTON — The Supreme Court on Tuesday accorded voters more leeway to challenge affirmative action, as justices upheld a Michigan measure that bans preferential treatment in college admissions based on race or ethnicity.

In a highly anticipated but fractured decision, the court said it lacked the authority to interfere with the political decision made by Michigan voters in 2006 when they amended their state’s constitution.

“Courts may not dis-empower the voters from choosing which path to follow,” Justice Anthony Kennedy wrote. “The Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power.”

The court’s ruling effectively gives the green light to voters in other states who may want to ban affirmative action. It does not force such a ban, though, and leaves intact past rulings that race may be considered in college admissions. In essence, the ruling lets the battle over affirmative action proceed on individual state fronts.

“This case didn’t involve the fraught question of whether states can pursue race-conscious measures,” said Ilya Shapiro, senior fellow at the libertarian Cato Institute. “Instead, this case was about the democratic process and whether voters can rein in the powers of their state government.”

Six justices agreed with the court’s conclusion that sustains the Michigan measure.

Only Chief Justice John Roberts Jr. and Justice Samuel Alito, though, fully agreed with Kennedy’s reasoning, restricting the potential reach of the plurality decision. Kennedy himself, moreover, emphasized the limits of the ruling.

“It is important to note what this case is not about,” Kennedy stressed. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education.”
Instead, Kennedy said, the decision is about letting states proceed with “innovation and experimentation” that encourages “greater citizen involvement in democratic processes.”

Conservative Justices Clarence Thomas and Antonin Scalia joined in a separate concurring opinion that argued against affirmative action itself. Liberal Justice Stephen Breyer, an affirmative action supporter, wrote his own concurring opinion offering other reasons to support Michigan voters.

Liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Justice Elena Kagan recused herself from the case because of her past work as the Obama administration’s solicitor general.

“We are fortunate to live in a democratic society,” Sotomayor wrote. “But without checks, democratically approved legislation can oppress minority groups.”

Affirmative action advocates likewise decried the ruling, with Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, saying it “will result in Michigan continuing to lose students and faculty of color to states that have the flexibility to consider the whole person before them.”

Total enrollment of African-American students at the flagship University of Michigan campus fell from 7 percent to 4.7 percent between 2006 and 2012, university records show. Latino student enrollment at the school fell from 4.9 percent to 4.3 percent of the total during the same period.

During the 2005-2006 school year, the University of Michigan enrolled 1,833 African-American students and 1,214 students identified as Hispanic. This school year, undergraduate enrollment includes 1,226 African-American students and 1,164 Latino students.

The falloff in minority student enrollment occurred after Michigan voters in 2006 handily approved an amendment to the state’s constitution that prohibits the granting of preferential treatment in public education, government contracting and public employment based on race, sex, ethnicity or national origin. White voters largely supported the measure, while African-American voters overwhelmingly opposed it, election surveys showed.

“The people of Michigan concluded that not having affirmative action in higher education was the best policy for the state,” Michigan Attorney General Bill Schuette argued in a legal brief. “Nothing in the Constitution bars the people of Michigan from making that choice.”

AFP Photo/Karen Bleier