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Court okays affirmative action ban

States can prohibit use at universities

The Supreme Court yesterday made clear that states are free to prohibit the use of racial considerations in university admissions, upholding Michigan’s constitutional amendment banning affirmative action.

By a 6-2 vote, the court concluded that it was not up to judges to overturn the 2006 decision by Michigan voters to bar consideration of race when deciding who gets into the state’s universities.

The ruling could encourage other states to join the handful that have such prohibitions, including California and Florida. Higher-education officials have warned that those states have seen a decline in the number of minorities admitted to their flagship universities.

In effect, the ruling says that universities may still employ the limited consideration of race authorized in previous Supreme Court rulings. But it also said that voters and legislators also have the right to curtail such plans.

That it took five separate opinions totaling 102 pages written over six months to reach that result is a sign of how divided the court remains on race-conscious government programs.

Justice Anthony Kennedy wrote the main opinion and said there was no reason for judicial intervention in state decisions that do not target minority groups.

“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy wrote in an opinion joined by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. “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 Sonia Sotomayor, in the most powerful and notable dissent of her 4½-year tenure on the court, blasted the majority and took particular aim at Roberts and the court’s conservatives, who she said attempt to “wish away” evidence of the nation’s racial inequality.

“Today’s decision eviscerates an important strand of our equal protection jurisprudence,” Sotomayor wrote in her 58-page dissenting opinion, joined by Justice Ruth Bader Ginsburg. Sotomayor, who this year said she was not fond of justices reading dissents from the bench to emphasize disagreement, overcame her reluctance to do just that.

“For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government,” Sotomayor wrote.

Justices Antonin Scalia and Clarence Thomas, who oppose racial preferences, agreed with the outcome but not Kennedy’s rationale.

Justice Stephen Breyer, normally part of the liberal bloc, also ruled for Michigan but on different grounds. If voters or their representatives have the right to adopt race-conscious policies, he said, so must they have the right to decide not to.

Justice Elena Kagan recused herself from the case, presumably because she had worked on the case while solicitor general.

Yesterday’s decision was not a surprise. At oral arguments in October, a majority of the justices had been skeptical of the appeals court’s rationale striking down Michigan’s ban and questioned how requiring the admission process to be colorblind could violate the Constitution’s guarantee of equal protection.

Moreover, it follows decisions by the Roberts court that limited the use of race in school assignments and ordered lower courts to take a closer look at the use of race in admission decisions at the University of Texas.

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