On Tuesday, April 22, 2014, the U.S. Supreme Court released its ruling in the case of Schuette v. Coalition To Defend Affirmative Action, with Justice Kennedy issuing an opinion in which Justices Roberts and Alito joined, Justice Roberts filing a concurring opinion, Justice Scalia filing an opinion concurring in the judgment, which Justice Thomas joined, and Justice Breyer also filing an opinion concurring in the judgment.  Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg.  Justice Kagan took no part in the case.  Michigan voters adopted Proposal 2 as part of the state constitution, which, among other things, prohibits the use of race-based preferences as part of the admissions process for state universities.  The trial court upheld the ban, but the Sixth Circuit reversed.  The various opinions written by the Justices total 108 pages, reversed the Sixth Circuit, and found that the question presented was not how to address or prevent injury caused on account of race, but whether voters may determine whether a policy of race-based preferences should be continued.  The Court determined that Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences.

Practice pointers.  At the present time, there are 42 states that do not have bans similar to Michigan’s.  In fact, the Supreme Court upheld affirmative action plans last June in a case involving the University of Texas.  The Schuette opinion defers to the rights of each state to determine if it will use race-based, affirmative action plans when determining who will be admitted to the state’s universities.  Additionally, in the Schuette case, there was no allegation of any injury to any prospective student as a result of Proposal 12. The Court may take another look at this Proposal if a student is denied admission based on an allegation of race-based discrimination.