RESPONSE: Protests greeted the Supreme Court's decision at the University of Michigan.
RESPONSE: Protests greeted the Supreme Court’s decision at the University of Michigan. (AP Photo / Detroit News, David Coates)

The U.S. Supreme Court’s decision upholding Michigan’s ban on race preferences in college admissions was predictable, according to court experts. Less predictable is what will follow.

“I think the issue of affirmative action is just on hold,” said Melissa Hart of the University of Colorado Law School. Last week’s decision, Hart said, “doesn’t move the issue in any direction.” But the next case to reach the high court might be critical — possibly the return of last term’s Fisher v. University of Texas, now being reheard in the U.S. Court of Appeals for the Fifth Circuit, she said.

The justices on April 22 held in Scheutte v. Coalition to Defend Affirmative Action that nothing in the U.S. Consti­tution or the court’s precedents prohibited voters from deciding to bar public universities from considering race in their admissions policies.

The court’s 6-2 decision (Justice Elena Kagan did not participate) reversed a ­ruling by the U.S. Court of Appeals for the Sixth Circuit, which relied on two of the justices’ civil rights-era decisions to strike down the voter-approved state constitutional amendment known as Proposal 2. (Michigan voters passed the ban in 2006.) Those precedents said voters could not reconfigure the political process in a way that imposes special burdens on the ability of minorities to achieve their interests.

Justice Anthony Kennedy, joined by Chief Justice John Roberts Jr. and Justice Samuel Alito Jr., said the Sixth Circuit had interpreted those two early decisions too broadly. Justices Antonin Scalia and Clarence Thomas would have overruled them, and Justice Stephen Breyer said the decisions did not apply to Michigan’s situation. Justice Sonia Sotomayor, who wrote a dissent joined by Justice Ruth Bader Ginsburg, agreed with the Sixth Circuit that the so-called political-process doctrine applied to invalidate Michigan’s ban.

The court’s fractured decision “reflects its struggle to reconcile its historic civil-rights era precedents protecting a racial minority’s ability to participate in the political process, with its more recent decisions and the trend of state voter initiatives limiting the scope of affirmative action programs,” said Pratik Shah, head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. “Although the earlier precedents remain on the books, their continued vitality is very much in doubt.”

In light of Schuette, some civil rights groups and their opponents forecast initiatives similar to Michigan’s Proposal 2 and California’s similar Proposition 209. Kennedy’s emphasis on the right of voters to debate, learn about and act through the initiative process, even on matters of race, they said, could boost such efforts.

However, any new initiatives may depend on how successful the states with affirmative action bans have been in achieving diversity without that tool, said Vikram Amar of the University of California, Davis School of Law. “In California, we have a mixed record. The University of California as a whole has maybe rebounded since Prop. 209 passed [in 1996], but it’s not nearly where it used to be or where it is at the most ­competitive campuses like Berkeley.”

INITIATIVE POSSIBILITIES

Twenty-four states have the initiative process and 18 of them allow constitutional amendments by initiative. Eight states ban affirmative action. Colorado’s Hart believed those eight states were targeted because their initiative process was relatively easy to use.

There have been few affirmative action initiatives in recent years. “How­ever, every state in the union has a legislature and a governor, and it is quite reasonable to think some legislators may introduce legislation along the lines of the Michigan proposition,” said Edward Blum, head of the anti-affirmative action Project on Fair Representation. “Based on the opinion of the American people, that legislation could very well be successful.”

Proposal 2 and similar state amendments also ban preferences based on race, gender, color, ethnicity or national origin in public employment and public contracting, said Keith Wiener of Holland & Knight. If the ruling emboldens other states’ voters, he said, minority and women-owned or disadvantaged business enterprise programs could be at risk.

“You have substantial dollars in connection with these programs throughout the country,” Wiener said. And even though there is often an exception to the ban for those minority programs receiving federal funds, he said, “They are being challenged as well. It’s a dynamic area of the law and will continue to be.”

As for the future of affirmative action in higher education in general, Amar said that opponents are speaking more about how affirmative action hurts instead of helps its intended beneficiaries. “I don’t buy that, but other policymakers are exploring that,” he said, adding that the notion appeared in the Schuette opinions by Roberts and Scalia and Thomas. “The basic attack has been that affirmative action is just wrong, but this is a different attack.

“To the extent the Supreme Court both reflects and leads thinking in important areas, that’s an important development to keep an eye on.”

Contact Marcia Coyle at mcoyle@alm.com.