Has the Supreme Court ended affirmative action at the college level?

Lyle Denniston looks at the Supreme Court's recent ruling on affirmative action, other historical decisions on it, and the next case about the subject heading toward the Justices.

"Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized by our precedents."

 – Justice Sonia Sotomayor, in a dissenting opinion on Tuesday as the Supreme Court upheld Michigan's voter-approved ban on the use of race in selecting students to enter the state's public colleges and universities. The ruling came in the case of Schuette v. Coalition to Defend Affirmative Action.

"A majority of the Justices not only overturned a decision by the U.S. Circuit Court of Appeals for the Sixth Circuit, which had struck down Michigan's measure, but also made clear that they would reject any similarly argued challenge to the bans on race-conscious admissions adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington."

 – Peter Schmidt, Washington reporter for The Chronicle of Higher Education, in an online story on Tuesday about the scope of the Supreme Court's decision.

Racial equality disputes, it is fair to say, have been a source of deep and growing constitutional controversy within the Supreme Court for at least the past decade, and the basic notion of "affirmative action" has been increasingly moving to the center of disagreement. The court, however, has just raised the prospect that this approach may be facing new and significant narrowing, at the least.

While the use of race as a key factor in shaping public policy and government programs has been used for hiring public workers and placing government contracts, its most frequent use – and its most controversial – has been in the field of education.  Indeed, the effort to rid the public schools of racial segregation, in the wake of the Supreme Court's 1954 and 1955 rulings in the case of Brown v. Board of Education, led directly to the creation of the concept of "affirmative action" as a remedy for ongoing racial bias.  (Some historians suggest that it may actually have had its origins in an order by President Harry Truman in 1948, desegregating the U.S. military.)

At the college level, the Supreme Court applied the idea in 1977 to uphold voluntary use of race as a factor in selecting students to attend the University of California's medical school, in the decision of California Regents v. Bakke.  But the continuation of that approach never was far from controversy, and when the Supreme Court reopened the issue in 2003, in two cases from the University of Michigan (one in the law school, one for undergraduate admissions), it was not at all clear that it would survive fully intact.

It did survive, but only by a 5 to 4 vote, in the case of Grutter v. University of Michigan – the law school case.  There were clear warning signs: the four dissenters argued that the admissions program was a thinly veiled version of a quota system.  Among those dissenters were Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas, who would continue on the court after several changes in its membership.

Those three, in fact, formed the core of a five-Justice majority four years later that struck down a voluntary public school affirmative action plan in a case involving the Seattle school district.  They were joined by then-new members, Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr.   That was the clearest sign yet that "affirmative action" was definitely in deepening trouble constitutionally.  Chief Justice Roberts reinforced that impression, with a now-famous comment in one of the opinions for the majority: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Only Justice Kennedy, who made clear at that time that there were some situations in which race could still be used in defining education policy, kept the Seattle decision from going further.

Then, in 2013, the Supreme Court returned to "affirmative action" at the college level for the first time in ten years and, once more, there were fairly common assumptions that this approach to racial equality in education would again be in peril.  This was the case of Fisher v. University of Texas, involving a white applicant's rejection for admission at the university's flagship Austin campus.

This time, Justice Kennedy wrote the lead opinion.  It spoke for a 7-1 majority (with only Justice Ruth Bader Ginsburg dissenting).  But the ruling totally supplanted the Grutter decision from a decade earlier, and created a new form of constitutional analysis that almost certainly would make it more difficult for public universities to justify the use of race in their admissions policy.

The ultimate outcome of that case remains uncertain, because it is currently going through a new round in a federal appeals court, the Fifth U.S. Circuit Court of Appeals.  That court held a hearing on the case on November 18, and is now pondering a decision.

That case appears most likely to be the next test of the Supreme Court's view on "affirmative action" at the college level.

But on Tuesday, the Supreme Court fundamentally altered the outlook for the use of race in educational policy with its decision in another Michigan college case, Schuette v. Coalition to Defend Affirmative Action.  In a 6-2 decision (with Justice Elena Kagan not taking part), the court ruled – for the first time – that the voters of a state may bar their public officials from any use of race in admissions to public colleges.

Although the court's lead opinion, written by Justice Kennedy, stressed that the court was not ruling on whether race-based admissions policies themselves were unconstitutional, the ruling created an opening for states to scuttle "affirmative action."   It said explicitly that issues of racial policy in America can be handled quite competently at the polling place.

Almost certainly, the skepticism that the Kennedy opinion expressed in that opinion about the role of the judiciary in overseeing America's debate about racial issues will be studied by the appeals court judges as they prepare to write their ruling in the new round in the University of Texas case.

In fact, on Tuesday, lawyers for the University of Texas brought the new decision to the appeals court's attention, to try to persuade those judges that the Supreme Court, in fact, had not undermined the constitutional premises of "affirmative action."   The challengers to Texas's admissions policies very likely will take a different view.

Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.