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Schuette v. Coalition to Defend Affirmative Action

United States Supreme Court

April 22, 2014

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER
v.
COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN), ET AL.

Argued October 15, 2013

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 12-682.

Syllabus [*]

After this Court decided that the University of Michigan's undergraduate admissions plan's use of race-based preferences violated the Equal Protection Clause, Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257, but that the law school admission plan's more [134 S.Ct. 1624] limited use did not, Grutter v. Bollinger, 539 U.S. 306, 343, 123 S.Ct. 2325, 156 L.Ed.2d 304, Michigan voters adopted Proposal 2, now Art. I, §26, of the State Constitution, which, as relevant here, prohibits the use of race-based preferences as part of the admissions process for state universities. In consolidated challenges, the District Court granted summary judgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that the proposal violated the principles of Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896.

Held:

The judgment is reversed.

701 F.3d 466, reversed.

Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded that there is no authority in the Federal Constitution or in this Court's precedents for the Judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions. Pp. 1630 - 1638, 188 L.Ed.2d, at 621-629.

(a) This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences. Where States have prohibited race-conscious admissions policies, universities have responded by experimenting "with a wide variety of alternative approaches." Grutter, supra, at 342, 123 S.Ct. 2325, 156 L.Ed.2d 304. The decision by Michigan voters reflects the ongoing national dialogue about such practices. Pp. 1630-1631, 188 L.Ed.2d, at 621-622.

(b) The Sixth Circuit's determination that Seattle controlled here extends Seattle's holding in a case presenting quite different issues to reach a mistaken conclusion. Pp. 1630-1638, 188 L.Ed.2d, at 621-629.

(1) It is necessary to consider first the relevant cases preceding Seattle and the background against which Seattle arose. Both Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830, and Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616, involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment to the California Constitution prohibiting state legislative interference with an owner's prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California's statutes, thus preventing them from leasing residential property. In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in " 'unhealthful, unsafe, unsanitary and overcrowded' " segregated housing, 393 U.S., at 391, 89 S.Ct. 557, 21 L.Ed.2d 616. In Seattle, after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools, voters passed a state initiative that barred busing to desegregate. This Court found that the state initiative had the "practical effect" of removing "the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests" of busing advocates who must now "seek relief from the state legislature, or from the statewide electorate." 458 U.S., at 474, 102 S.Ct. 3187, 73 L.Ed.2d 896. Pp. 1630 – 1633, 188 L.Ed.2d, at 621-624.

(2) Seattle is best understood as a case in which the state action had the [134 S.Ct. 1625] serious risk, if not purpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter. While there had been no judicial finding of de jure segregation with respect to Seattle's school district, a finding that would be required today, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720-721, 127 S.Ct. 2738, 168 L.Ed.2d 508, Seattle must be understood as Seattle understood itself, as a case in which neither the State nor the United States "challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior dejure segregation." 458 U.S. at 472, n. 15, 102 S.Ct. 3187, 73 L.Ed.2d 896.

Seattle's broad language, however, went well beyond the analysis needed to resolve the case. Seizing upon the statement in Justice Harlan's concurrence in Hunter that the procedural change in that case had "the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest, " 393 U.S., at 395, 89 S.Ct. 557; 21 L.Ed.2d 616, the Seattle Court established a new and far-reaching rationale: Where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be " 'in their interest, ' " then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" is subject to strict scrutiny. 458 U.S., at 472, 474, 102 S.Ct. 3187, 73 L.Ed.2d 896. Pp. 1632 -1634, 188 L.Ed.2d, at 623-625.

(3) To the extent Seattle is read to require the Court to determine and declare which political policies serve the "interest" of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious equal protection concerns. In cautioning against "impermissible racial stereotypes, " this Court has rejected the assumption that all individuals of the same race think alike, see Shaw v. Reno, 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511, but that proposition would be a necessary beginning point were the Seattle formulation to control. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. Such a venture would be undertaken with no clear legal standards or accepted sources to guide judicial decision. It would also result in, or impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms. Assuming these steps could be taken, the court would next be required to determine the policy realms in which groups defined by race had a political interest. That undertaking, again without guidance from accepted legal standards, would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption of the Seattle formulation could affect any number of laws or decisions, involving, e.g., tax policy or housing subsidies. And racial division would be validated, not discouraged.

It can be argued that objections to the larger consequences of the Seattle formulation need not be confronted here, for race was an undoubted subject of the ballot issue. But other problems raised by Seattle, such as racial definitions, still apply. And the principal flaw in the Sixth Circuit's decision remains: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences [134 S.Ct. 1626] granted by state entities should be ended. The Sixth Circuit's judgment also calls into question other States' long-settled rulings on policies similar to Michigan's.

Unlike the injuries in Mulkey, Hunter, and Seattle, the question here is 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. By approving Proposal 2 and thereby adding §26 to their State Constitution, 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. The mandate for segregated schools, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and scores of other examples teach that individual liberty has constitutional protection. But this Nation's constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here. These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Such circumstances were present in Mulkey, Hunter, and Seattle, but they are not present here. Pp. 1684-1638, 188 L.Ed.2d, at 625-629.

Justice Scalia, joined by Justice Thomas, agreed that § 26 rightly stands, though not because it passes muster under the political-process doctrine. It likely does not, but the cases establishing that doctrine should be overruled. They are patently atextual, unadministrable, and contrary to this Court's traditional equal protection jurisprudence. The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not. Pp. 1629-1638, 188 L.Ed.2d, at 630-641.

(a) The Court of Appeals for the Sixth Circuit held §26 unconstitutional under the so-called political-process doctrine, derived from Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896, and Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616. In those cases, one level of government exercised borrowed authority over an apparently "racial issue" until a higher level of government called the loan. This Court deemed each revocation an equal-protection violation, without regard to whether there was evidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle would point to a similar conclusion here, as in so many other cases. Pp. 1629-1632, 188 L.Ed.2d, at 632-634.

(b) The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policymaking authority concerns a "racial issue, " Seattle, 458 U.S., at 473, 102 S.Ct. 3187, 73 L.Ed.2d 896, i.e., whether adopting one position on the question would "at bottom inurfe] primarily to the benefit of the minority, and is designed for that purpose, " id., at 472, 102 S.Ct. 3187, 73 L.Ed.2d 896. Such freeform judicial musing into ethnic and racial "interests" involves judges in the dirty business of dividing the Nation "into racial blocs, " Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 603, 610, 110 S.Ct. 2997, 111 L.Ed.2d 445 (O'Connor, J., dissenting), and promotes racial stereotyping, see Shaw v. Reno, 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511. More fundamentally, the analysis misreads the Equal Protection Clause to protect particular groups, a construction that has been repudiated in a "long line of cases understanding equal [134 S.Ct. 1627] protection as a personal right." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224, 230, 115 S.Ct. 2097, 132 L.Ed.2d 158. Pp. 1632 -1635, 188 L.Ed.2d, at 634-637.

(c) The second part of the Hunter-Seattle analysis directs a court to determine whether the challenged act "place[s] effective decisionmaking authority over [the] racial issue at a different level of government, " Seattle, supra, at 474, 102 S.Ct. 3187, 73 L.Ed.2d 896; but, in another line of cases, the Court has emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 58 L.Ed.2d 292. Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty, which would seem to permit a State to give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself. Pp. 1634 - 1637, 188 L.Ed.2d, at 637-639.

(d) Hunter and Seattle also endorse a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. That equal-protection theory has been squarely and soundly rejected by an "unwavering line of cases" holding "that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent, " Hernandez v. New York, 500 U.S. 352, 372-373, 111 S.Ct. 1859, 114 L.Ed.2d 395 (O'Connor, J., concurring in judgment), and that "official action will not be held unconstitutional solely because it results in a racially disproportionate impact, " Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 50 L.Ed.2d 450. Respondents cannot prove that the action here reflects a racially discriminatory purpose, for any law expressly requiring state actors to afford all persons equal protection of the laws does not— cannot—deny "to any person . . . equal protection of the laws, " U.S. Const., Amdt. 14, §1. Pp. 1630 -1638, 188 L.Ed.2d, at 639-641.

JUSTICE BREYER agreed that the amendment is consistent with the Equal Protection Clause, but for different reasons. First, this case addresses the amendment only as it applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body. Second, the Constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. It foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these programs. Third, Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616, and Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896, which reflect the important principle that an individual's ability to participate meaningfully in the political process should be independent of his race, do not apply here. Those cases involved a restructuring of the political process that changed the political level at which policies were enacted, while this case involves an amendment that took decisionmaking authority away from unelected actors and placed it in the hands of the voters. Hence, this case does not involve a diminution of the minority's ability to participate in the political process. Extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would also create significant difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process. Pp. 1629 - 1632, 188 L.Ed.2d, at 641-644.

KENNEDY, J., announced the judgment of the Court and delivered an [134 S.Ct. 1628] opinion, in which ROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GlNSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case.

John J. Bursch, Solicitor General, Lansing, MI, for Petitioner.

Shanta Driver, Detroit, MI, for Respondents Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, et al.

Mark D. Rosenbaum. for Respondents Chase Cantrell et al.

B. Eric Restuccia, Deputy Solicitor General, Aaron D. Lindstrom, Assistant Solicitor General, Bill Schuette, Michigan Attorney General, John J. Bursch, Solicitor General, Counsel of Record, Lansing, MI, for Petitioner.

Winifred Kao, Asian Americans Advancing Justice-Asian Law Caucus, San Francisco, CA, Doyle G. O'Connor. Chicago, IL, George B. Washington, Counsel of Record, Shanta Driver. Eileen R. Scheff, Monica R. Smith, Joyce P. Schon, Ronald Cruz, Scheff, Washington & Driver, P.C, Detroit, MI, for Respondents Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, et al.

Laurence H. Tribe, Cambridge, MA, Joshua I. Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Mark I). Rosenbaum, Counsel of Record, David B. Sapp, ACLU Foundation of Southern California, Los Angeles, CA, Ka-rin A. DeMasi, Nicole M. Peles, Cravath, Swaine & Moore LLP, New York, NY, Erwin Chemerinsky, University of California, I nine School of Law, Irvine, CA, Sherrilyn If/ill, Damon T. Hewitt, NAACP Legal Del'ense & Educational Fund, Inc., New York, NY, Steven R. Shapiro, Dennis I). Parker, ACLU Foundation, New York, NY, Melvin Butch Hollowell, Jr., Detroit Branch NAACP, Detroit, MI, Kary L. Moss, Michael J. Steinberg, Mark P. Fanchor, ACLU Fund of Michigan, Detroit, MI, Jerome R. Watson, Miller, Can-field, Paddock and Stone, P.L.C., Detroit, MI, Daniel P. Tokaji, The Ohio State University, Moritz College of Law, Columbus, OH, for Respondents Chase Cantrell et al.

Stephanie R. Setterington, Varnum LLP, Grand Rapids, MI, for Respondents Board of Governors of Wayne State University and Irvin Reid.

Leonard M. Niehoff, Honigman Miller Schwartz and Conn, LLP, Ann Arbor, MI, for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University. Marx Sue Coleman, and Lou Anna K. Simon.

Michael E. Rosman, ("'enter for Individual Rights, Washington, D.C. Alan K. Palmer, J.D. Taliaferro, Washington, D.C., Charles J. Cooper, Counsel of Record, David H. Thompson, Howard C. Nielson, Jr., Cooper & Kirk, PLLC, Washington. D.C., for Respondent Eric Russell.

Bill Schuette, Attorney General, John J. Bursch, Michigan Solicitor General, Counsel of Record, Lansing, MI, B. Eric Restuccia, Deputy Solicitor General. Aaron D. Lindstrom, Assistant Solicitor General, for Petitioner.

[134 S.Ct. 1629] OPINION

KENNEDY, J.

The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257. The law school admission plan was addressed in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304. Each admissions process permitted the explicit consideration of an applicant's race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. 539 U.S., at 270, 123 S.Ct. 2411, 156 L.Ed.2d 257. In Grutter, the Court found no constitutional flaw in the law school admission plan's more limited use of race-based preferences. 539 U.S., at 343, 123 S.Ct. 2325, 156 L.Ed.2d 304.

In response to the Court's decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case.

The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, §26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows:

"(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

"(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

"(3) For the purposes of this section 'state' includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1."

Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary [134 S.Ct. 1630] (BAMN); students; faculty; and prospective applicants to Michigan public universities. The named defendants included then-Governor Jennifer Granholm, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General was granted leave to intervene as a defendant. The United States District Court for the Eastern District of Michigan consolidated the cases.

In 2008, the District Court granted summary judgment to Michigan, thus upholding Proposal 2. BAMN v. Regents of Univ. of Mich., 539 F.Supp.2d 924. The District Court denied a motion to reconsider the grant of summary judgment. 592 F.Supp.2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F.3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633-646. The panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), and in the cases that Seattle relied upon.

The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F.3d 466 (C.A.6 2012). The majority opinion determined that Seattle "mirrors the [case] before us." Id., at 475. Seven judges dissented in a number of opinions. The Court granted certiorari. 568 U.S. __, 133 S.Ct. 1633, 185 L.Ed.2d 615 (2013).

Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U.S. __, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but 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.

This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: "Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop." 539 U.S., at 342, 123 S.Ct. 2325, 156 L.Ed.2d 304 (citing United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring) ("[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear")). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure "permits 'innovation and experimentation'" and "enables greater citizen 'involvement in democratic processes.'" Bond v. United States, 564 U.S. ___, ___ 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269 (2011) (slip op., at 9) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). While this case [134 S.Ct. 1631] arises in Michigan, the decision by the State's voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education. See, e.g., Coalition for Economic Equity v. Wilson, 122 F.3d 692 (C.A.9 1997).

In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. Mich. Const., Art. VIII, §5; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86-87, 594 N.W.2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. But whether the boards or the faculty set the specific policy, Michigan's public universities did consider race as a factor in admissions decisions before 2006.

In holding §26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Seattle, supra, which it deemed to control the case. But that determination extends Seattle's holding in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases that preceded Seattle and the background against which Seattle itself arose.

Though it has not been prominent in the arguments of the parties, this Court's decision in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), is a proper beginning point for discussing the controlling decisions. In Mulkey, voters amended the California Constitution to prohibit any state legislative interference with an owner's prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from their apartment. Those adverse actions were on account of race. In both cases the complaining parties were barred, on account of race, from invoking the protection of California's statutes; and, as a result, they were unable to lease residential property. This Court concluded that the state constitutional provision was a denial of equal protection. The Court agreed with the California Supreme Court that the amendment operated to insinuate the State into the decision to discriminate by encouraging that practice. The Court noted the "immediate design and intent" of the amendment was to "establis[h] a purported constitutional right to privately discriminate." Id., at 374, 87 S.Ct. 1627, 18 L.Ed.2d 830 (internal quotation marks omitted and emphasis deleted). The Court agreed that the amendment "expressly authorized and constitutionalized the private right to discriminate." Id., at 376, 87 S.Ct. 1627, 18 L.Ed.2d 830. The effect of the state constitutional amendment was to "significantly encourage and involve the State in private racial discriminations." Id., at 381, 87 S.Ct. 1627, 18 L.Ed.2d 830. In a dissent joined by three other Justices, Justice Harlan disagreed with the majority's holding. Id., at 387, 87 S.Ct. 1627, 18 L.Ed.2d 830. The dissent reasoned that California, by the action of its voters, simply wanted the State to remain neutral in this area, so that the State was not a party to discrimination. Id., at 389, 87 S.Ct. 1627, 18 L.Ed.2d 830. That dissenting voice did not prevail against the majority's conclusion that the state action in question encouraged discrimination, causing real and specific injury.

The next precedent of relevance, Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), is central to the arguments the respondents make in the instant case. In Hunter, the Court for the first [134 S.Ct. 1632] time elaborated what the Court of Appeals here styled the "political process" doctrine. There, the Akron City Council found that the citizens of Akron consisted of "'people of different race[s], . . . many of whom live in circumscribed and segregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing.'" Id., at 391, 89 S.Ct. 557, 21 L.Ed.2d 616. To address the problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. But most other ordinances "regulating the real property market" were not subject to those threshold requirements. Id., at 390, 89 S.Ct. 557, 21 L.Ed.2d 616. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences because the owners had specified they would not sell to black persons.

Central to the Court's reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in "'unhealthful, unsafe, unsanitary and overcrowded conditions.'" Id., at 391, 89 S.Ct. 557, 21 L.Ed.2d 616. The Court stated: "It is against this background that the referendum required by [the charter amendment] must be assessed." Ibid. Akron attempted to characterize the charter amendment "simply as a public decision to move slowly in the delicate area of race relations" and as a means "to allow the people of Akron to participate" in the decision. Id., at 392, 89 S.Ct. 557, 21 L.Ed.2d 616. The Court rejected Akron's flawed "justifications for its discrimination, " justifications that by their own terms had the effect of acknowledging the targeted nature of the charter amendment. Ibid. The Court noted, furthermore, that the charter amendment was unnecessary as a general means of public control over the city council; for the people of Akron already were empowered to overturn ordinances by referendum. Id., at 390, n. 6, 89 S.Ct. 557, 21 L.Ed.2d 616. The Court found that the city charter amendment, by singling out antidiscrimination ordinances, "places special burden on racial minorities within the governmental process, " thus becoming as impermissible as any other government action taken with the invidious intent to injure a racial minority. Id., at 391, 89 S.Ct. 557, 21 L.Ed.2d 616. Justice Harlan filed a concurrence. He argued the city charter amendment "has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest." Id., at 395, 89 S.Ct. 557, 21 L.Ed.2d 616. But without regard to the sentence just quoted, Hunter rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities. The facts in Hunter established that invidious discrimination would be the necessary result of the procedural restructuring. Thus, in Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated.

Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools. Voters who opposed the school board's busing plan passed a state initiative that barred busing to desegregate. The Court first determined that, although "white as well as Negro children benefit from" diversity, the school board's plan "inures primarily to the benefit of the minority." 458 U.S., at 472, 102 S.Ct. 3187, 73 L.Ed.2d 896. The Court next found [134 S.Ct. 1633] that "the practical effect" of the state initiative was to "remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests" because advocates of busing "now must seek relief from the state legislature, or from the statewide electorate." Id., at 474, 102 S.Ct. 3187, 73 L.Ed.2d 896. The Court therefore found that the initiative had "explicitly us[ed] the racial nature of a decision to determine the decisionmaking process." Id., at 470, 102 S.Ct. 3187, 73 L.Ed.2d 896 (emphasis deleted).

Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the State's voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation with respect to Seattle's school district, it appears as through school segregation in the district in the 1940's and 1950's may have been the partial result of school board policies that "permitted white students to transfer out of black schools while restricting the transfer of black students into white schools." Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 807-808, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically, the complaint alleged "that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts." Id., at 810, 127 S.Ct. 2738, 168 L.Ed.2d 508. As part of a settlement with the Office for Civil Rights, the school board implemented the "Seattle Plan, " which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U.S., at 807-812, 127 S.Ct. 2738, 168 L.Ed.2d 508.

As this Court held in Parents Involved, the school board's purported remedial action would not be permissible today absent a showing of de jure segregation. Id., at 720-721, 127 S.Ct. 2738, 168 L.Ed.2d 508. That holding prompted JUSTICE BREYER to observe in dissent, as noted above, that one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle as Seattle understood itself, as a case in which neither the State nor the United States "challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior dejure segregation." 458 U.S. at 472, n. 15, 102 S.Ct. 3187, 73 L.Ed.2d 896. In other words the legitimacy and constitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Ibid. Seattle involved a state initiative that "was carefully tailored to interfere only with desegregative busing." Id., at 471, 102 S.Ct. 3187, 73 L.Ed.2d 896. The Seattle Court, accepting the validity of the school board's busing remedy as a predicate to its analysis of the constitutional question, found that the State's disapproval of the school board's busing remedy was an aggravation of the very racial injury in which the State itself was complicit.

[134 S.Ct. 1634] The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case. The Court there seized upon the statement in Justice Harlan's concurrence in Hunter that the procedural change in that case had "the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest." 385 U.S., at 395, 89 S.Ct. 557, 21 L.Ed.2d 616. That language, taken in the context of the facts in Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be " 'in their interest, '" then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" must be reviewed under strict scrutiny. 458 U.S., at 472, 474, 102 S.Ct. 3187, 73 L.Ed.2d 896. In essence, according to the broad reading of Seattle, any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.

The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to invalidate Proposal 2. The expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court's settled equal protection jurisprudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the "interest" of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.

In cautioning against "impermissible racial stereotypes, " this Court has rejected the assumption that "members of the same racial group—regardless of their age, education, economic status, or the community in which they live— think alike, share the same political interests, and will prefer the same candidates at the polls." Shaw v. Reno, 509 U.S. 630, 647, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993); see also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 636, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (KENNEDY, J., dissenting) (rejecting the "demeaning notion that members of . . . defined racial groups ascribe to certain 'minority views' that must be different from those of other citizens"). It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis [134 S.Ct. 1635] of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Cf. Ho v. San Francisco Unified School Dist., 147 F.3d 854, 858 (C.A.9 1998) (school district delineating 13 racial categories for purposes of racial balancing). Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.

Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial framework, the court would next be required to determine the policy realms in which certain groups—groups defined by race—have a political interest. That undertaking, again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce what particular issues of public policy should be classified as advantageous to some group defined by race. This risk is inherent in adopting the Seattle formulation.

There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that "inur[e] primarily to the benefit of the minority" and that "minorities . . . consider" to be " 'in their interest.' " 458 U.S., at 472, 474, 102 S.Ct. 3187, 73 L.Ed.2d 896. Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation. In a nation in which governmental policies are wide ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects. Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force.

Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.

One response to these concerns may be that objections to the larger consequences of the Seattle formulation need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, [134 S.Ct. 1636] such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.

It should also be noted that the judgment of the Court of Appeals in this case of necessity calls into question other long-settled rulings on similar state policies. The California Supreme Court has held that a California constitutional amendment prohibiting racial preferences in public contracting does not violate the rule set down by Seattle. Coral Constr., Inc. v. City and County of San Francisco, 50 Cal.4th 315, 113 Cal.Rptr.3d 279, 235 P.3d 947 (2010). The Court of Appeals for the Ninth Circuit has held that the same amendment, which also barred racial preferences in public education, does not violate the Equal Protection Clause. Wilson, 122 F.3d 692 (1997). If the Court were to affirm the essential rationale of the Court of Appeals in the instant case, those holdings would be invalidated, or at least would be put in serious question. The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper. And were the argument made that Coral might still stand because it involved racial preferences in public contracting while this case concerns racial preferences in university admissions, the implication would be that the constitutionality of laws forbidding racial preferences depends on the policy interest at stake, the concern that, as already explained, the voters deem it wise to avoid because of its divisive potential. The instant case presents the question involved in Coral and Wilson but not involved in Mulkey, Hunter, and Seattle. That question is 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.

By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States "respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times." Bond, 564 U.S., at __, 131 S.Ct. 2355, 2364, 180 L.Ed.2d 269, 280. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.

The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); a wrongful invasion of the home, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); or punishing a protester whose views offend others, Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty's full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. 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 [134 S.Ct. 1637] 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. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate's power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Cf. Johnson v. California, 543 U.S. 499, 511-512, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) ("[Searching judicial review .. is necessary to guard against invidious discrimination"); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) ("Racial discrimination" is "invidious in all contexts"). As already noted, those were the circumstances that the Court found present in Mulkey, Hunter, and Seattle. But those circumstances are not present here.

For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents [134 S.Ct. 1638] that stand for the conclusion that Michigan's voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others. The electorate's instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity— consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U.S. 105, 109, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967) ("Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs"). Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters' reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or decision of this case.

Roberts, C. J., concurring

The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it "do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court." Post, at 57, 188 L.Ed.2d, at 678 (opinion of SOTOMAYOR, J.). The dissent concedes that the governing boards of the State's various universities could have implemented a policy making it illegal to "discriminate against, or grant preferential treatment to, " any individual on the basis of race. See post, at 3, 34-35, 188 L.Ed.2d, at 645, 664. On the dissent's view, if the governing boards conclude that drawing racial distinctions in university admissions is undesirable or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously.

The dissent states that "[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race." Post, at 1676, 188 L.Ed.2d, at 671. And it urges that "[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'" Ibid. But it is not "out of touch with reality" to conclude that racial preferences may themselves have [134 S.Ct. 1639] the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 1675 - 1676, 188 L.Ed.2d, at 670. To disagree with the dissent's views on the costs and benefits of racial preferences is not to "wish away, rather than confront" racial inequality. Post, at 1676, 188 L.Ed.2d, at 671. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.[*]

SCALIA, with whom Justice THOMAS joins, concurring in the judgment

It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U.S. 306, 349, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.

Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? Reacting to those race-based-admissions decisions, some States—whether deterred by the prospect of costly litigation; aware that Grutter's bell may soon toll, see 539 U.S., at 343, 123 S.Ct. 2325, 156 L.Ed.2d 304; or simply opposed in principle to the notion of "benign" racial discrimination—have gotten out of the racial-preferences business altogether. And with our express encouragement: "Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop." Id., at 342, 123 S.Ct. 2325, 156 L.Ed.2d 304 (emphasis added). Respondents seem to think this admonition was merely in jest.[1] The experiment, [134 S.Ct. 1640] they maintain, is not only over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of directing subordinate public-university officials to cease considering the race of applicants, since that would deny members of those minority groups the option of enacting a policy designed to further their interest, thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority's interest. Cf. id., at 371-373, 123 S.Ct. 2325, 156 L.Ed.2d 304 (Thomas, J., concurring in part and dissenting in part). And never mind that, were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional. See id., at 322-325, 123 S.Ct. 2325, 156 L.Ed.2d 304 .

But the battleground for this case is not the constitutionality of race-based admissions—at least, not quite. Rather, it is the so-called political-process doctrine, derived from this Court's opinions in Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), and Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). I agree with those parts of the plurality opinion that repudiate this doctrine. But I do not agree with its reinterpretation of Seattle and Hunter, which makes them stand in part for the cloudy and doctrinally anomalous proposition that whenever state action poses "the serious risk .. of causing specific injuries on account of race, " it denies equal protection. Ante, at 1633, 188 L.Ed.2d, at 624. I would instead reaffirm that the "ordinary principles of our law [and] of our democratic heritage" require "plaintiffs alleging equal protection violations" stemming from facially neutral acts to "prove intent and causation and not merely the existence of racial disparity." Freeman v. Pitts, 503 U.S. 467, 506, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (SCALIA, J., concurring) (citing Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). I would further hold that a law directing state actors to provide equal protection is (to say the least) facially neutral, and cannot violate the Constitution. Section 26 of the Michigan Constitution (formerly Proposal 2) rightly stands.

I

A

The political-process doctrine has its roots in two of our cases. The first is Hunter. In 1964, the Akron City Council passed a fair-housing ordinance "'assuring] equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.'" 393 U.S., at 386, 89 S.Ct. 557, 21 L.Ed.2d 616. Soon after, the city's voters passed an amendment to the Akron City Charter stating that any ordinance enacted by the council that "'regulates'" commercial transactions in real property "'on the basis of race, color, religion, national origin or ancestry'"— including the already enacted 1964 ordinance—"must first be approved by a majority of the electors voting on the question" at a later referendum. Id., at 387, 89 S.Ct. 557, 21 L.Ed.2d 616. The question was whether the charter amendment denied equal protection. Answering yes, the Court explained that "although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality [134 S.Ct. 1641] is that the law's impact falls on the minority. The majority needs no protection against discrimination." Id., at 391, 89 S.Ct. 557, 21 L.Ed.2d 616. By placing a "special burden on racial minorities within the governmental processes, " the amendment "disadvantage[d]" a racial minority "by making it more difficult to enact legislation in its behalf." Id., at 391, 393, 89 S.Ct. 557, 21 L.Ed.2d 616.

The reasoning in Seattle is of a piece. Resolving to "eliminate all [racial] imbalance from the Seattle public schools, " the city school board passed a mandatory busing and pupil-reassignment plan of the sort typically imposed on districts guilty of dejure segregation. 458 U.S., at 460-461, 102 S.Ct. 3187, 73 L.Ed.2d 896. A year later, the citizens of the State of Washington passed Initiative 350, which directed (with exceptions) that "'no school . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student's place of residence . . . and which offers the course of study pursued by such student, '" permitting only court-ordered race-based busing. Id., at 462, 102 S.Ct. 3187, 73 L.Ed.2d 896. The lower courts held Initiative 350 unconstitutional, and we affirmed, announcing in the prelude of our analysis—as though it were beyond debate—that the Equal Protection Clause forbade laws that "subtly distor[t] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Id., at 467, 102 S.Ct. 3187, 73 L.Ed.2d 896.

The first question in Seattlewas whether the subject matter of Initiative 350 was a "'racial' issue, " triggering Hunter and its process doctrine. 458 U.S., at 471-472, 102 S.Ct. 3187, 73 L.Ed.2d 896. It was "undoubtedly. . . true" that whites and blacks were "counted among both the supporters and the opponents of Initiative 350." Id., at 472, 102 S.Ct. 3187, 73 L.Ed.2d 896. It was "equally clear" that both white and black children benefitted from desegregated schools. Ibid.Nonetheless, we concluded that desegregation "inures primarily to the benefit of the minority, and is designed for that purpose." Ibid, (emphasis added). In any event, it was "enough that minorities may consider busing for integration to be 'legislation that is in their interest.'" ...


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