The 6-2 vote and the four opinions issued by justices in the
majority revealed divisions on the court as to the legal rationale
in rejecting civil rights groups' challenge to the ban. Justice
Sonia Sotomayor, who wrote the sole dissenting opinion, read
excerpts from the bench, calling the decision a blow to
"historically marginalized groups, which rely on the federal courts
to protect their constitutional rights."
The court emphasized that it was not deciding the larger and
divisive question of whether affirmative action admission policies
can be lawful.
But the decision made it clear that voter-approved affirmative
action bans can withstand legal challenges. It could encourage other
states to pass similar bans and deter challenges to existing bans in
seven other states.
Civil rights groups had argued that the 2006 Michigan constitutional
amendment that passed as a ballot initiative had imposed burdens on
racial minorities in violation of the U.S. Constitution's guarantee
of equal protection.
Affirmative action programs, first advocated in the 1960s to combat
discrimination against racial minorities, have faced a backlash from
conservatives in recent decades. Court rulings and action by states
have chipped away at the practice.
In November 2012, a divided 6th U.S. Circuit Court of Appeals in
Cincinnati ruled Michigan's ban unconstitutional, prompting the
state to appeal to the Supreme Court.
Michigan's Republican attorney general, Bill Schuette, said in an
interview that the Supreme Court had provided other states with a
"constitutional roadmap" if they wish to enact similar laws and had
"heard the voices of voters who overwhelmingly voted to require
equal treatment in admissions."
The other states with similar bans are Arizona, California, Florida,
Nebraska, New Hampshire, Oklahoma and Washington.
Some states that do not currently have bans — Alabama, Georgia and
West Virginia — backed Michigan. Ward Connerly, a veteran
affirmative action opponent who helped pass the California ban, said
no states are actively pursuing similar voter-approved measures.
"These initiatives are very complicated, very expensive and very
laborious," Connerly said in an interview.
The ruling was decried by civil rights activists and some Democrats.
"Our nation has come a long way in seeking to end discrimination,
but our work is far from complete at a time of continued
under-representation of minorities in high education and many walks
of life," said Michigan Democratic Representative John Conyers, one
of the senior black members of Congress.
White House spokesman Jay Carney told reporters that President
Barack Obama, the first black U.S. president, continues to believe
that, in the context of university admissions, "considering race,
along with other factors, can be appropriate in certain
[to top of second column]
"WHO MAY RESOLVE IT"
On Tuesday, the justices in the majority were divided three ways.
Justice Anthony Kennedy wrote an opinion, joined by Chief Justice
John Roberts and Justice Samuel Alito, saying the lower court that
threw out the law lacked the authority to do so.
"This case is not about how the debate about racial preferences
should be resolved," Kennedy wrote. "It is about who may resolve
Justice Antonin Scalia wrote a separate opinion, joined by Justice
Clarence Thomas, in which he said challenges to laws that rest on
equal protection claims must show that the law reflects a
discriminatory purpose. This law did not, he said.
Justice Stephen Breyer was the only member of the liberal wing of
the court to join the majority. The dissenting votes came from two
of the court's liberal members, Justices Sotomayor and Ruth Bader
Ginsburg. Justice Elena Kagan did not take part, presumably because
she worked on the case in her previous position as U.S. solicitor
Mark Rosenbaum, the American Civil Liberties Union lawyer who argued
before the Supreme Court, said the ban "unfairly keeps students from
asking universities to consider race as one factor in admissions,
but allows consideration of factors like legacy status, athletic
achievement and geography."
The Michigan case was argued in October 2013, just four months after
the justices issued a legally narrow ruling on affirmative action in
a different case involving the University of Texas at Austin.
In a lopsided 7-1 vote that few had expected, the court said
university policies that took race into account could be more
vulnerable to legal challenges in the future but the court did not
strike the policy down.
The Michigan case raised a different legal question, focusing not on
the state's ban on affirmative action itself but rather the
political process that led to its amendment being enacted.
The case is Schuette v. Coalition to Defend Affirmative Action, U.S.
Supreme Court, No. 12-682.
(Additional reporting by Steve Holland;
editing by Will Dunham,
Cynthia Osterman and Grant McCool)
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