Eleven years after the Supreme Court's decisions on the affirmative action programs at Michigan's public university system, the issue of affirmative action in higher education has returned to the Supreme Court. Reviewing what happened in 2003 is critical to understanding today's decision, Schuette v. Coalition to Defend Affirmative Action et al.
In 2003, the Court decided a pair of cases: Grutter v. Bollinger and Gratz v. Bollinger. In the Grutter decision, the Court upheld the University of Michigan law school's admissions plan, which sought to ensure student diversity by making limited use of race-based preferences (as one of a number of factors). In Gratz, however, the Court invalidated the University of Michigan's undergraduate admissions plan, finding that it violated the federal Constitution's Equal Protection Clause because it used a "point allocation" system that awarded a fixed number of points to members of certain racial minority groups and thereby precluded individualized assessment of applicants. The University revised the plan to comply with the Court's directives, but continued to make limited use of race-based preferences.
In response, Michigan voters amended the Michigan constitution by a ballot initiative commonly referred to as "Proposal 2." Proposal 2 prohibits the use of any racial preferences whatsoever in admission to Michigan's publicly funded educational institutions, regardless of the purpose behind using the racial preference. Proposal 2 therefore forbade both the undergraduate and the law school admissions plans that had been at issue in Gratz and Grutter, as well as the new, post-Gratz undergraduate admissions plan. Proposal 2 also prohibits the use of any racial preferences in public employment and public contracting, but those issues were not part of the Schuette challenge.
Today's case arose out of a challenge to Proposal 2 in relation to the use of racial preferences in college and university admissions. It was not a challenge to the legality of a particular admissions plan or the use of a race-based preference by any higher education institution. Instead, the Court was asked to decide whether the voters could permissibly adopt Proposal 2, which essentially forbids the state from adopting affirmative action programs for state institutions of higher education. This case, then, is not a challenge to a plan adopted to "address or prevent injury caused on account of race" but rather it looks at the fundamental question of "whether voters may determine whether a policy of race-based preferences should be continued." Or, as Justice Kennedy succinctly summarized: "This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it."
In the Court's view, a functioning democracy cannot suppress citizen involvement, and it is not up to the Court to decide that voters are not able to grasp sensitive or complex matters:
"Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity."