The U.S. Supreme Court continued its decade-long interest in the role of affirmative action in the higher education admissions process, and decided to uphold a state law banning the practice.  In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court upheld a Michigan state law that outlawed the practice of considering race in admissions to that state’s public universities.

In 2003, a narrowly divided Supreme Court upheld affirmative action at the University of Michigan's law school, but struck down a different point-based method the same university employed for undergraduate admissions, because it made race too dominant a factor.  That set the stage for the state’s voters to pass a ballot proposal outlawing race-based admissions decisions in 2006.  The measure told the state’s public colleges and universities that they could no longer “grant preferential treatment” on the basis of race in their admissions policies.

The Supreme Court’s Decision in Schuette

In considering the challenge to the Michigan ban, the Supreme Court focused not on the appropriateness of affirmative action, but on when statewide votes are legitimate tools to set policies that have an impact on minority citizens.

The plurality opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justice Samuel Alito — stressed that the court was not ruling on the constitutionality of the consideration of race in admissions, only on the right of states not to exercise their right to have such consideration at their public colleges.

"This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged," the opinion says. "Rather, the question concerns whether, and in what manner, voters in the states may choose to prohibit the consideration of such racial preferences.

Where states have prohibited race-conscious admissions policies, universities have responded by experimenting with a wide variety of alternative approaches. The decision by Michigan voters reflects the ongoing national dialogue about such practices."

Justice Sotomayor, joined by Justice Ginsburg, wrote a lengthy dissent that strongly disagreed with the majority.

Justice Sotomayor wrote that Michigan voters "changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities."  In order to obtain admissions preferences, they now would have to amend the state Constitution, she wrote, while other groups — such as alumni children or athletes — could obtain admissions preferences more easily, such as by lobbying administrators.

Effect and Import of Decision May Be Limited

The Supreme Court’s ruling does not invalidate last year's decision that, under certain circumstances, it is constitutional for public colleges and universities to consider race in

admissions. That decision — Fisher v. University of Texas at Austin — found that institutions have a right to consider race, but not an obligation to do so.  Schuette now adds to the jurisprudence by saying that states can reject the use of that right.

Eight states since 1996 have ended affirmative action in admissions decisions.  These bans now appear to be safe from challenge based on Schuette. Some legislators in other states have now expressed their support for adopting similar laws, but most expect there will be no groundswell in legislative activity.  The impact on colleges and universities may be just as limited.

Many institutions do not use race or ethnicity as considerations in their admissions decisions, but instead actively recruit minorities through different methods.  Some schools focus recruitment efforts in urban areas or other areas that have larger concentrations of minorities, particularly African-American and Hispanic students.   Institutions may also look to factors other than race — such as first-generation status or low-income backgrounds — in considering an applicant’s admission.  And in states where affirmative action bans do not exist, institutions may still consider race as a factor.