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Supreme Court allows states to ban affirmative action

The Supreme Court issued a historic ruling today on affirmative action programs, allowing states to restrict their use in university admissions and at other public institutions.

The justices said in a 6-2 ruling Tuesday that Michigan voters are allowed to change their state constitution to ban public institutions such as colleges and universities from taking race into account during the admissions process. The justices overturned a lower court decision in the process.

Justice Anthony Kennedy said nothing in the Constitution or the Supreme Court's case history allows courts to undermine the election results. Kennedy was joined by Chief Justice John Roberts and Justice Samuel Alito in a plurality opinion.

"This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," Kennedy said. "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."

Justice Antonin Scalia, joined by Justice Clarence Thomas in a separate opinion, compared the pro-affirmative action arguments in the case to the Plessy v. Ferguson decision from the Jim Crow era.

"As Justice Harlan observed over a century ago, "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," Scalia said. "The people of Michigan wish the same for their governing charter."

Justice Sonia Sotomayor read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent. Justice Elena Kagan didn't take part in the case because of her past role as solicitor general.

"To know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process," said Sotomayor. "The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities."

The decision will effectively allow as many as eight states to pursue affirmative action bans, but it doesn't force 42 other states to eliminate pro-affirmative action policies.

The Schuette case was about a challenge to Proposal 2, an amendment to the Michigan Constitution that voters approved in 2006 banning affirmative action in the state. The question in Schuette was whether the state of Michigan violated the 14th Amendment's Equal Protection Clause when it amended its state constitution to ban affirmative action programs in its universities and in the public sector.

The Schuette case gave the Court the opportunity to examine affirmative action in a very different way than it had in the Fisher case decided last June and in the Court's best-known affirmative action decisions—including its seminal 1978 decision in Regents of the University of California v. Bakke (which first approved the use of affirmative action to achieve diversity in higher education) and its 2003 case Grutter v. Bollinger (which upheld the University of Michigan Law School's affirmative action policies).

Last term, Justice Anthony Kennedy's decision in Fisher sent the case back to the Fifth Circuit Court of Appeals, which the Supreme Court held had not properly applied the strict scrutiny standard of review to the University of Texas's affirmative action program.

Scott Bomboy is the editor in chief of the National Constitution Center.