On April 22, 2014, the United States Supreme Court decided Schuette v. Coalition to Defend Affirmative Action. The case centered on the issue of whether a state may, by a constitutional amendment, bar the use of affirmative action in all state agencies, including public education. The Supreme Court decided that such a constitutional amendment is permissible under the United States Constitution.
The Sixth Circuit Court of Appeals originally held that the Michigan Constitutional Amendment, known as Proposal 2, was unconstitutional because it violated the Equal Protection Clause of the United States Constitution. Proposal 2 was passed in 2006 with fifty-eight percent of Michigan voters voting for passage. The Amendment provided as follows:
“(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
“(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or na- tional origin in the operation of public employment, public education, or public contracting.
“(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.” (Emphasis added.)
Writing for the 6-2 majority, Justice Kennedy in Schuette rejected the reasoning of the Sixth Circuit Court of Appeals. In doing so, he boldly held: “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.” In deciding the case, the majority overruled a portion of Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), explicitly rejecting that decision’s holding that state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups . . . to achieve legislation that it in their interest” is subject to the strict scrutiny standard. Justice Kennedy distinguished this type of legislation from legislation that involves the state in invidious discrimination aimed at disenfranchising or disadvantaging a racial or religious group, maintaining that, in such circumstances, “the Constitution requires redress by the Courts.”
Justice Kennedy was careful, however, to state that this was not a case about the constitutionality of affirmative action itself. “The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.”
Majority: Justices Kennedy, Roberts, Alito. Justices Thomas, Scalia and Breyer concurred in the judgment. Justice Ginsburg and Justice Sotomayor dissented. Justice Kagan did not take part in the consideration of the case.
Read the full case here.