Mich. Affirmative Action Decision: 5 Takeaways

By Brett Snider, Esq. on April 22, 2014 | Last updated on March 21, 2019

Michigan's ban on affirmative action has been upheld by the U.S. Supreme Court, making the practice illegal for public employment, government contracts, and admission to Michigan's public universities.

In a 6-2 ruling issued Tuesday, the High Court determined that Michigan's Proposal 2 did not violate the U.S. Constitution's guarantee of equal protection, leaving the federal courts no authority to strike down the law, Reuters reports.

The fight over affirmative action in schools is far from over, but here are five takeaways from today's decision on Michigan's affirmative action ban:

1. States Can Choose to Ban Affirmative Action.

Affirmative action has been called a form of reverse discrimination, giving preference to historically marginalized groups in order to address present inequalities. Legal scholars have disagreed whether this practice is in fact illegal racial discrimination.

The U.S. Supreme Court sidestepped this question in Tuesday's ruling in Schuette v. Coalition to Defend Affirmative Action. The Court found that if a state's voters chose to ban affirmative action by amending their state's constitution, there was nothing unconstitutional about that voter initiative. This leaves each state to choose how to approach affirmative action.

2. Dissent Warns of Burdens on Minorities.

Writing for the dissent in the Michigan affirmative action case (and reading her dissent from the bench), Justice Sonia Sotomayor warned that minority students now face an increased burden to have their historical circumstances taken into consideration.

Factoring in "legacy" status is possible by petitioning a school's admissions board, but racial factors may only be considered by re-amending the state constitution.

3. Affirmative Action Is Tricky.

The U.S. Supreme Court determined more than a decade ago that some affirmative action strategies in undergraduate university admissions were unconstitutional. The High Court has disapproved of affirmative action plans that are essentially racial quota systems.

But in June, the Court acknowledged that a University of Texas admissions system that used race as a factor may still be constitutional, so the issue is far from settled.

4. Justice Kagan Recused Herself.

Judges and justices may recuse themselves if they feel there is a conflict of interest. Justice Elena Kagan was the U.S. Solicitor General when this case was in the lower federal courts, presenting a possible conflict. That's why only eight of nine Justices took part in this decision.

5. The University of Michigan Needs Diversity.

Speaking to MLive, University of Michigan Admissions Director Ted Spencer decried the decision, stating that "[i]t's impossible to achieve diversity on a regular basis" without using race as a factor in admissions.

Under Michigan's affirmative action ban, black students currently make up only 4.6 percent of the University of Michigan's undergraduates. That's down from 8.9 percent in 1995.

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