The U.S. Supreme Court has decided that state voters may choose to prohibit the consideration of race in governmental decisions, in particular with respect to public school admissions.  The decision came on April 22, 2014, in Schuette v. Coalition to Defend Affirmative Action (2014) 572 U.S. — [2014 WL 1577512].  The case involved a state ban on considering race in admissions at the University of Michigan.

The Supreme Court ruled that banning affirmative action is permissible.  The end result is that the consideration of race in college admissions is still permissible under certain circumstances, as the Court recently reaffirmed in Fisher v. University of Texas at Austin (2013) 570 U.S. —, but that a majority of voters in a state may choose to ban the practice.

In 2003, the U.S. Supreme Court struck down the University of Michigan's undergraduate affirmative action admissions policy.  (Gratz v. Bollinger (2003) 539 U.S. 244.)  After the Court's decision, the university revised its undergraduate admissions process, but still allowed limited use of race-based preferences.

In 2006, the voters in Michigan adopted Proposal 2, which amended the Michigan Constitution to prohibit state and other government entities from granting preferences based on race and other factors in public employment and public education, including in the admissions process for state universities.  This change to the state constitution was challenged in court and eventually reached the U.S. Supreme Court.  The Supreme Court ruled that it was constitutional for the voters of the state to adopt Proposal 2, and let Michigan's constitutional ban on affirmative action stand.

In Schuette, a majority of the Court adopted this ruling, but not all for the same reasons.  The greatest number of justices in the majority to agree (the "plurality") rejected the arguments of civil rights proponents that this case was like others where state voters overturned local government policies meant to benefit minorities, placing special burdens on the political participation of racial minorities in those communities.  The plurality of the Court found that there were no specific harms to individuals made worse by Proposal 2, unlike the other cases, and that the principles in those cases were being read too broadly.  Instead, the Court found that the state underwent a public policy debate, voters exercised their democratic power, and that there was nothing unconstitutional about voters banning racial preferences in government decisions.

California's Proposition 209, a state ballot proposition adopted by voters in 1996, similarly amended the state constitution to prohibit state government institutions from considering race, sex, color, ethnicity, or national origin in the areas of public employment, public contracting, and public education.  (Cal. Const., art. I, section 31.)  The language used in Michigan's Proposal 2 is similar to the language used in California's Proposition 209, and both cover public employment in addition to college admissions.  Though Proposition 209 has been challenged in court many times, it continues to withstand legal scrutiny, and Schuette affirms the constitutionality of its adoption as a state ballot measure in the first place.

On January 30, 2014, the California State Senate passed Senate Constitutional Amendment 5, which would have exempted state universities from Proposition 209.  However, the measure has since been withdrawn and will not be considered in the California Assembly.  Proposition 209 remains the law in California.

Note:

California's Proposition 209 does more than prohibit the consideration of race in admissions in public universities.  It also prohibits the consideration of race and sex in public employment, and thus hiring.  However, community college districts must still comply with Equal Employment Opportunity regulations found in the California Code of Regulations, Title 5, which were revised last year with the help of LCW partner Laura Schulkind.

Schuette v. Coalition to Defend Affirmative Action (2014) 572 U.S. __ [2014 WL 1577512].