Supreme Court Breakdown: States Can Ban Affirmative Action

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Since the Supreme Court released its ruling on affirmative action in Michigan earlier this week (which we covered back when it was argued in October), there has been a lot of controversy surrounding it. Some say the justices ignored very real problems of race in America, turning a blind eye to such a serious topic, while others say the court left it to the hands of the voters. But what many people are failing to overlook is that this decision does not speak to the merits or disadvantages of affirmative action: it looks at what a state’s rights are when deciding how to apply affirmative action.

Before we get into the semantics of the ruling, it’s important to go over some background of affirmative action cases.

Way back in 1978, the Supreme Court decided setting racial quotas was unconstitutional in Regents v. Bakke. Basically, a college could not decide to admit X percent of students of a certain race based on their race alone. The court upheld, however, the larger idea of affirmative action- saying schools could consider race as one of many factors in admissions. That holds true to this day.

Fast forward to 2003, when the University of Michigan was sued in Gratz v. Bollinger because it has applied an admissions policy in which minority students are awarded certain “points” based on their race. The Court held that this was unconstitutional because it did not allow the school to look at applicants as individuals, rather, assigned preferential treatment based on race alone.

But that is not all- also in 2003, the University of Michigan Law School was sued in Grutter v. Bollinger, under similar claims, that the University’s consideration of race in admissions was unconstitutional. But the Law School’s admissions policies regarding race (which were seemingly less stringent than the undergrad ones) were upheld and Constitutional.

So what’s a state to do after its premier educational institutions keep getting sued?

Outlaw affirmative action, of course. And Michigan did just that in 2006, when 58 percent of the state voted in favor of outlawing it. Needless to say, this caused a lot of controversy among people who hold that affirmative action is a helpful and necessary way of ensuring equality in schools. So people sued the state, a lower court upheld the ban as legal, the ruling was appealed, and the appellate court determined it was unconstitutional. And that brings us to the Supreme Court hearing the case.

The most important thing to remember about this case is that it does not decide anything about affirmative action on its own- since 1978, we have known that it is legal to consider race in admissions. This case, as stated in the opinion, deals with “whether, and in what manner, voters in the states may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

Basically, the Court had to look at whether voters in a state could decide that they do not want to take affirmative action policies into account at their state colleges – not whether or not affirmative action is good or bad, or even constitutional in its own right. Michigan is not the only state to have outlawed affirmative action, it joins seven others: California, Arizona, Florida, Washington, Nebraska, Oklahoma, and New Hampshire. The only thing this ruling has done is say that citizens have the ability to enact laws in their states that make affirmative action illegal. Those laws may not be agreeable, and many people may take exception to them; but the Court has ruled that states are able to decide on policies like these for themselves.

But when the 6-2 decision affirming Michigan’s right to outlaw affirmative action came out, there was an uproar from people who claimed the courts were refusing to take minority rights into consideration. But that’s not what the Court was doing. It was not commenting on whether or not affirmative action should be implemented- that is up to the members of each state. Furthermore, the Court’s ruling also has no bearing on the affirmative action policies of private universities within these states.

When the Supreme Court makes decisions, it is important to keep in mind their decisions are based off of legal statutes, not emotions or what “feels right.” It is easy to want to Supreme Court to rule a certain way, especially for programs like affirmative action which have been lauded by many as a step in the right direction for racial equality. But it is not right to expect them to do so, if there is a legal precedent behind an opposite outcome.

[Michigan Ruling] [Regents v. Bakke] [Gratz v. Bollinger] [Grutter v. Bollinger] [USA Today]

Molly Hogan (@molly_hogan13)

Featured Image Courtesy of [Marty Hogan via Flickr]


Molly Hogan
Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at



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