Was the Supreme Court right in allowing Michigan to uphold its ban on affirmative action?

Affirmative ActionOn Tuesday, April 22, 2014, the Supreme Court of the United States ruled 6-2 on a decision that the state of Michigan can uphold its ban on affirmative action. Florida and California already have bans in place.

In 2006, Michigan voters, by a margin of 58 percent to 42 percent, passed a referendum to amend the state Constitution and ban any consideration of race in college and university admissions. A federal appeals court invalidated the ban, citing earlier Supreme Court decisions that prevented restructuring government to disadvantage minorities.

The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.

Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the State Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.

The justices wrote their decisions in five separate opinions totaling more than 100 pages. The Justices had varying fervorous opinions, but the one dissent that stands out to me is considered the most passionate decision of Justice Sonia Sotomayor‘s career. She said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.” She went on to say “I had been admitted to the Ivy League through a special door.” She wrote in her best-selling memoir, My Beloved World that “I lived the day-to-day reality of affirmative action.”

In his opinion, Justice Anthony Kennedy (with the other three justices) wrote; “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. 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.”

“Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice,” Kennedy continued. “That history demands that we continue to learn, to listen and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.”

Sotomayor, affirmative action
Justice Sonia Sotomayor

Justice Stephen Breyer stated last June in another case, “The Constitution, he said, permits but does not require states to use race-conscious admissions for educational diversity. In general,” he said, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

It appears that Affirmative Action will probably be banned on a state by state basis from here on out. The experience with the ban in California “has been difficult because immediately following the ban on race-conscious affirmative action, the enrollment of African-Americans and Latinos plummeted in the selective higher education institutions,” says Christopher Edley, former dean of the UC Berkeley law school. He adds that the school “has yet to fully recover.” 

Other states with bans have had similar precipitous drops in minority enrollment, but some have seen minority enrollment stay steady or even climb. So far it has been banned for schools, not the government or its contractors. Many private companies also follow Affirmative Action guidelines so the impact of this decision has more to do with who gets an education (Which of course leads to a better job). The University application will no longer ask what race the student is, and they will be admitted by standard principles for everyone.

I have seen Affirmative Action work both ways in my professional and personal life. On one hand, it has helped everyone become aware of how skewed admissions and jobs were between minorities and white males. Now that a generation of minorities have been able to level the playing field a little, it will be interesting to see how the statistics change. I do agree that Affirmative Action should be handled on a state level since the socioeconomic factors change in each particular state. I do not think this will lead to further discrimination, at least not on a widespread basis. We’ll have to see where the statistics on minorities entering universities shift.

Hi everyone! I am a prior litigation paralegal and graduate of the UCLA paralegal program. My undergraduate studies were at University of Nevada, Las Vegas majoring in Sociology and minoring in Business. Adding law heightened my analytical skills of legal issues, social issues and I worked on several high profile class action cases against BMW; Microsoft; General Motors; 24 Hour Fitness; Airborne vitamin supplement and several other class action cases that were litigated U.S. Federal Courts. I love writing about political and consumer protection issues and proud to be a contributor for Quietmike.org.


  1. Setting aside the more unfortunate parts of your screed, let me offer you a simple explanation of what affirmative action is and what it isn’t:

    Ten people are applying for nine available openings in the upcoming class at the University of Michigan Law School. Nine of the ten are white. One of the ten is a person of color. Their LSAT scores are exactly the same. Their interviews were virtually indistinguishable from each other in terms of quality, etc.

    Affirmative Action simply means that the person of color receives one of those acceptances based primarily on the fact that he/she is a person of color. Prior to Affirmative Action, that ninth spot would have traditionally gone to a white student. Affirmative Action meant that minorities did not suffer (as much) from discriminatory practices and was further based on the premise that the benefits of diversity were served by an inclusive rather than exclusive practice.

    It is, quite simply, ludicrous for white people, given the indignities they have heaped on persons of color throughout U.S. history, to scream that they are the victims of discrimination just because the playing field was being somewhat leveled by Affirmative Action.

  2. Among the several seemingly glaring problems I have with Kennedy’s opinion—the ignoring of precedent, fast becoming endemic to the five conservatives who essentially make up the Roberts Court, not being least among them—one is represented by what is a virtual tautology: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

    By definition, the issue per “who may resolve it” is determinative of the issue per “how the debate about racial preferences should be resolved.”

    Had we left “the debate about racial preferences” to state ballot boxes, we in the south would still have separate/unequal schools and African-Americans would still be getting their meals from “takeaway windows” on the backside of hamburger joints. Furthermore, Republicans would not have had to engage in their current voter suppression efforts because people of color would still be guessing the number of jelly beans in the jar in order to “qualify” for access to the ballot.

    Though I mightily disagree with Kennedy’s illogical argument, I could at least manage to laugh at it if I thought the playing field in this country had been leveled such that the court’s decision wouldn’t much matter. But, it hasn’t. And this decision makes the slope even steeper. And that makes this decision no laughing matter.

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