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. 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.
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:
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
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 (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) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). While this case
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 (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. 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. In a dissent joined by three other Justices, Justice Harlan disagreed with the majority's holding. Id., at 387, 87 S.Ct. 1627. 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. 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
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. 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. 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. 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. 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. 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. The Court next found
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 though 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. 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.
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. 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 de jure segregation." 458 U.S. at 472, n. 15, 102 S.Ct. 3187. 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. 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.
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
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. 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,
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., at 2364. 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 S.Ct. 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
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) ("[S]earching 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
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.
Chief Justice ROBERTS, 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 1682-1683 (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 1652-1653, 1669-1670. 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. 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
Justice 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; 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 (emphasis added). Respondents seem to think this admonition was merely in jest.
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. 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.
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 "`assur[ing] 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. 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. 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
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 de jure segregation. 458 U.S., at 460-461, 102 S.Ct. 3187. 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. 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.
The first question in Seattle was 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. 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. 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.'" Id., at 474, 102 S.Ct. 3187 (quoting Hunter, supra, at 395, 89 S.Ct. 557 (Harlan, J., concurring)).
So we proceeded to the heart of the political-process analysis. We held Initiative 350 unconstitutional, since it removed "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." Seattle, 458 U.S., at 474, 102 S.Ct. 3187. Although school boards in Washington retained authority over other student-assignment issues and over most matters of educational policy generally, under Initiative 350, minorities favoring race-based busing would have to "surmount a considerably higher hurdle" than the mere petitioning of a local assembly: They "now must seek relief from the state legislature, or from the statewide electorate," a "different level of government." Ibid.
The relentless logic of Hunter and Seattle would point to a similar conclusion in this case. In those cases, one level of government exercised borrowed authority over an apparently "racial issue," until a higher level of government called the loan. So too here. In those cases, we deemed the revocation an equal-protection violation regardless of whether it facially classified according to race or reflected an invidious purpose to discriminate. Here, the Court of Appeals did the same.
The plurality sees it differently. Though it, too, disavows the political-process-doctrine basis on which Hunter and
As for Seattle, what was really going on, according to the plurality, was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. Thus, "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." Ante, at 1638. That conclusion is derived not from the opinion but from recently discovered evidence that the city of Seattle had been a cause of its schools' racial imbalance all along: "Although there had been no judicial finding of de jure segregation with respect to Seattle's school district, it appears as though school segregation in the district in the 1940's and 1950's may have been the partial result of school board policies." Ante, at 1633.
Once again this describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle's schools suffered at most from de facto segregation, see, e.g., 458 U.S., at 474, 475, 102 S.Ct. 3187 — that is, segregation not the "product... of state action but of private choices," having no "constitutional implications," Freeman, 503 U.S., at 495-496, 112 S.Ct. 1430. Nor did it anywhere state that the current racial imbalance was the (judicially remediable) effect of prior de jure segregation. Absence of de jure segregation or the effects of de jure segregation was a necessary premise of the Seattle opinion. That is what made the issue of busing and pupil reassignment a matter of political choice rather than judicial mandate.
Patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence, Hunter and Seattle should be overruled.
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. Seattle takes a couple of dissatisfying cracks at defining this crucial term. It suggests that an issue is racial if adopting one position on the question would "at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose." Id., at 472, 102 S.Ct. 3187. It is irrelevant that, as in Hunter and Seattle, 458 U.S., at 472, 102 S.Ct. 3187, both the racial minority and the racial majority benefit from the policy in question, and members of both groups favor it. Judges should instead focus their guesswork on their own juridical sense of what is primarily for the benefit of minorities. Cf. ibid. (regarding as dispositive what "our cases" suggest is beneficial to minorities). On second thought, maybe judges need only ask this question: Is it possible "that minorities may consider" the policy in question to be "in their interest"? Id., at 474, 102 S.Ct. 3187. If so, you can be sure that you are dealing with a "racial issue."
No good can come of such random judicial musing. The plurality gives two convincing reasons why. For one thing, it 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 (1990) (O'Connor, J., dissenting); ante, at 1634-1635. That task is as difficult as it is unappealing. (Does a half-Latino, half-American Indian have Latino interests, American-Indian interests, both, half of both?
But that is not the "racial issue" prong's only defect. More fundamentally, it misreads the Equal Protection Clause to protect "particular group[s]," a construction that we have tirelessly repudiated in a "long line of cases understanding equal protection as a personal right." Adarand Constructors, Inc. v. Peã, 515 U.S. 200, 224, 230, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). It is a "basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups." Id., at 227, 115 S.Ct. 2097; Metro Broadcasting, supra, at 636, 110 S.Ct. 2997 (KENNEDY, J., dissenting).
The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by "`prejudice against discrete and insular minorities'" merits "`more exacting judicial scrutiny.'" Post, at 1668 (quoting United States v. Carolene Products, 304 U.S. 144, 152-153, n. 4, 58 S.Ct. 778, 82 S.Ct. 1234). I say derived from that dictum (expressed by the four-Justice majority of a seven-Justice Court) because the dictum itself merely said "[n]or need we enquire ... whether prejudice against discrete and insular minorities may be a special condition," id., at 153, n. 4, 58 S.Ct. 778 (emphasis added). The
Moving from the appalling to the absurd, I turn now to the second part of the Hunter-Seattle analysis — which is apparently no more administrable than the first, compare post, at 1650-1651 (BREYER, J., concurring in judgment) ("This case ... does not involve a reordering of the political process"), with post, at 1664-1667 (SOTOMAYOR, J., dissenting) (yes, it does). This part of the inquiry 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, 458 U.S., at 474, 102 S.Ct. 3187. The laws in both Hunter and Seattle were thought to fail this test. In both cases, "the effect of the challenged action was to redraw decisionmaking authority over racial matters — and only over racial matters — in such a way as to place comparative burdens on minorities." 458 U.S., at 475, n. 17, 102 S.Ct. 3187. This, we said, a State may not do.
Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty. If indeed the Fourteenth Amendment forbids States to "place effective decisionmaking authority over" racial issues at "different level[s] of government," then it must be true that the Amendment's ratification in 1868 worked a partial ossification of each State's governing structure, rendering basically irrevocable the power of any subordinate state official who, the day before the Fourteenth Amendment's passage, happened to enjoy legislatively conferred authority over a "racial issue." Under the Fourteenth Amendment, that subordinate entity (suppose it is a city council) could itself take action on the issue, action either favorable or unfavorable to minorities. It could even reverse itself later. What it could not do, however, is redelegate its power to an even lower level of state government (such as a city-council committee) without forfeiting it, since the necessary effect of wresting it back would be to put an additional obstacle in the path of minorities. Likewise, no entity or official higher up the state chain (e.g., a county board) could exercise authority over the issue. Nor, even, could the state legislature, or the people by constitutional amendment, revoke the legislative conferral of power to the subordinate, whether the city council, its subcommittee, or the county board. Seattle's logic would create affirmative-action safe havens wherever subordinate officials in public universities (1) traditionally have enjoyed "effective decisionmaking authority" over admissions policy but (2) have not yet used that authority to prohibit race-conscious admissions decisions. The mere existence of a subordinate's discretion over the matter would work a kind of reverse pre-emption. It is "a strange notion — alien to our system — that local governmental bodies can forever pre-empt the ability of a State — the sovereign power — to address a matter of compelling concern to the State." 458 U.S., at 495, 102 S.Ct. 3187 (Powell, J., dissenting). But that is precisely what the political-process doctrine contemplates.
Perhaps the spirit of Seattle is especially disquieted by enactments of constitutional amendments. That appears to be the dissent's position. The problem with § 26, it suggests, is that amending Michigan's Constitution is simply not a part of that State's "existing" political process. E.g., post, at 1653, 1673-1674. What a peculiar notion: that a revision of a State's fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law's authority, is not part of the "political process" which, but for those people and that law, would not exist. This will surely come as news to
I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each endorses a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected. "An unwavering line of cases from this Court holds 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 (1991) (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 (1977). Indeed, we affirmed this principle the same day we decided Seattle: "[E]ven when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown." Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527, 537-538, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982).
Notwithstanding our dozens of cases confirming the exceptionless nature of the Washington v. Davis rule, the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle, suggesting that state action denies equal protection when it "ha[s] the serious risk, if not purpose, of causing specific injuries on account of race," or is either "designed to be used, or ... likely to be used, to encourage infliction of injury by reason of race." Ante, at 1633, 1637-1638 (emphasis added). Since these formulations enable a determination of an equal-protection violation where there is no discriminatory intent, they are inconsistent with the long Washington v. Davis line of cases.
Respondents argue that we need not bother with the discriminatory-purpose test, since § 26 may be struck more straightforwardly as a racial "classification."
Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the action reflects a racially discriminatory purpose. Seattle stresses that "singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation." 458 U.S., at 486, n. 30, 102 S.Ct. 3187. True enough, but that motivation must be proved. And respondents do not have a prayer of proving it here. The District Court noted that, under "conventional equal protection" doctrine, the suit was "doom[ed]." 539 F.Supp.2d 924, 951 (E.D.Mich.2008). Though the Court of Appeals did not opine on this question, I would not leave it for them on remand. In my view, any law expressly requiring state actors to afford all persons equal protection of the laws (such as Initiative 350 in Seattle, though not the charter amendment in Hunter) does not — cannot — deny "to any person ... equal protection of the laws," U.S. Const., Amdt. 14, § 1, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.
As Justice Harlan observed over a century ago, "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 S.Ct. 256 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.
Justice BREYER, concurring in the judgment.
Michigan has amended its Constitution to forbid state universities and colleges to "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." Mich. Const., Art. I, § 26. We here focus on the prohibition of "grant[ing] ... preferential treatment ... on the basis of race ... in ... public education." I agree with the plurality that the amendment is consistent with the Federal Equal Protection Clause. U.S. Const., Amdt. 14. But I believe this for different reasons.
Second, dissenting in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007), I explained why I believe race-conscious programs of this kind are constitutional, whether implemented by law schools, universities, high schools, or elementary schools. I concluded that the Constitution does not "authorize judges" either to forbid or to require the adoption of diversity-seeking race-conscious "solutions" (of the kind at issue here) to such serious problems as "how best to administer America's schools" to help "create a society that includes all Americans." Id., at 862, 127 S.Ct. 2738.
I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution. The serious educational problems that faced Americans at the time this Court decided Grutter endure. See, e.g., I. Mullis, M. Martin, P. Foy, & K. Drucker, Progress in International Reading Literacy Study, 2011 International Results in Reading 38, Exh. 1.1 (2012) (elementary-school students in numerous other countries outperform their counterparts in the United States in reading); I. Mullis, M. Martin, P. Foy, & A. Arora, Trends in International Mathematics and Science Study (TIMSS), 2011 International Results in Mathematics 40, Exh. 1.1 (2012) (same in mathematics); M. Martin, I. Mullis, P. Foy, & G. Stanco, TIMSS, 2011 International Results in Science, 38, Exh. 1.1 (2012) (same in science); Organisation of Economic Co-operation Development (OECD), Education at a Glance 2013: OECD Indicators 50 (Table A2.1a) (secondary-school graduation rate lower in the United States than in numerous other countries); McKinsey & Co., The Economic Impact of the Achievement Gap in America's Schools 8 (Apr. 2009) (same; United States ranks 18th of 24 industrialized nations). And low educational achievement continues to be correlated with income and race. See, e.g., National Center for Education Statistics, Digest of Education Statistics, Advance Release of Selected 2013 Digest Tables (Table 104.20) (White Americans more likely to have completed high school than African-Americans or Hispanic-Americans), online at http://nces.ed.gov/programs/digest (as visited Apr. 15, 2014, and available in Clerk of Court's case file); id., Table 219.75 (Americans in bottom quartile of income most likely to drop out of high school); id., Table 302.60 (White Americans more likely to enroll in college than African-Americans or Hispanic-Americans); id., Table 302.30 (middle- and high-income Americans more likely to enroll in college than low-income Americans).
The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.
Third, cases such as Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), and Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), reflect an important principle, namely, that an individual's ability to participate meaningfully in the political process should be independent of his race. Although racial minorities, like other political minorities, will not always succeed at the polls, they must have the same opportunity as others to secure through the ballot box policies that reflect their preferences. In my view, however, neither Hunter nor Seattle applies here. And the parties do not here suggest that the amendment violates the Equal Protection Clause if not under the Hunter-Seattle doctrine.
Hunter and Seattle involved efforts to manipulate the political process in a way not here at issue. Both cases involved a restructuring of the political process that changed the political level at which policies were enacted. In Hunter, decisionmaking was moved from the elected city council to the local electorate at large. 393 U.S., at 389-390, 89 S.Ct. 557. And in Seattle, decisionmaking by an elected school board was replaced with decisionmaking by the state legislature and electorate at large. 458 U.S., at 466, 102 S.Ct. 3187.
This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, § 5, but those boards delegated admissions-related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents § 8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance § 4.4.3; Wayne State Univ. Stat. §§ 2-34-09, 2-34-12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 1664-1667 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies — including, for example, school boards, city councils, and state legislatures — have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F.3d 466, 481-482 (C.A.6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, unelected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan's constitutional amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in the hands of the voters.
Why does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter and Seattle does not easily fit this case. In those cases minorities had participated in the political process and
For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, ___, 130 S.Ct. 3138, 3174, 177 L.Ed.2d 706 (2010) (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the administrative process frequently moves around — due to amendments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative structural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tending to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race-conscious policies work.
Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.
As I have said, my discussion here is limited to circumstances in which decisionmaking is moved from an unelected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educational benefits of a diverse student body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does. Therefore, I concur in the judgment of the Court.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, dissenting.
We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights.
Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.
This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.
But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art. I, § 26, which provides in relevant part that Michigan's public universities "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."
As a result of § 26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State's universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant's legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.
Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else. This Court has held that the Fourteenth Amendment does not tolerate "a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 467, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (internal quotation marks omitted). Such restructuring, the Court explained, "is no more permissible than denying [the minority] the [right to] vote, on an equal basis with others." Hunter v. Erickson, 393 U.S. 385, 391, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). In those cases — Hunter and Seattle — the Court recognized what is now known as the "political-process doctrine": When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.
The plurality's decision fundamentally misunderstands the nature of the injustice worked by § 26. This case is not, as the plurality imagines, about "who may resolve" the debate over the use of race in higher education admissions. Ante, at 1638. I agree wholeheartedly that nothing vests the resolution of that debate exclusively in the courts or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved, contra, ibid. — that is, it must be resolved in constitutionally permissible ways. While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals — here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents.
Like the plurality, I have faith that our citizenry will continue to learn from this Nation's regrettable history; that it will strive to move beyond those injustices towards a future of equality. And I, too, believe in the importance of public discourse on matters of public policy. But I part ways with the plurality when it suggests that judicial intervention in this case "impede[s]" rather than "advance[s]" the democratic process and the ultimate hope of equality. Ante, at 1637. I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection. Because I would do so here, I respectfully dissent.
For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.
The Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to vote. But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there are countless examples of States categorically denying to racial minorities access to the political process. Consider Texas; there, a 1923 statute prevented racial minorities from participating in primary elections. After this Court declared that statute unconstitutional, Nixon v. Herndon, 273 U.S. 536, 540-541, 47 S.Ct. 446, 71 S.Ct. 759 (1927), Texas responded by changing the rules. It enacted
Some States were less direct. Oklahoma was one of many that required all voters to pass a literacy test. But the test did not apply equally to all voters. Under a "grandfather clause," voters were exempt if their grandfathers had been voters or had served as soldiers before 1866. This meant, of course, that black voters had to pass the test, but many white voters did not. The Court held the scheme unconstitutional. Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 S.Ct. 1340 (1915). In response, Oklahoma changed the rules. It enacted a new statute under which all voters who were qualified to vote in 1914 (under the unconstitutional grandfather clause) remained qualified, and the remaining voters had to apply for registration within a 12-day period. Lane v. Wilson, 307 U.S. 268, 270-271, 59 S.Ct. 872, 83 S.Ct. 1281 (1939). The Court struck down that statute as well. Id., at 275, 59 S.Ct. 872.
Racial minorities were occasionally able to surmount the hurdles to their political participation. Indeed, in some States, minority citizens were even able to win elective office. But just as many States responded to the Fifteenth Amendment by subverting minorities' access to the polls, many States responded to the prospect of elected minority officials by undermining the ability of minorities to win and hold elective office. Some States blatantly removed black officials from local offices. See, e.g., H. Rabinowitz, Race Relations in the Urban South, 1865-1890, pp. 267, 269-270 (1978) (describing events in Tennessee and Virginia). Others changed the processes by which local officials were elected. See, e.g., Extension of the Voting Rights Act, Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., pt. 1, pp. 2016-2017 (1981) (hereinafter 1981 Hearings) (statement of Professor J. Morgan Kousser) (after a black judge refused to resign in Alabama, the legislature abolished the court on which he served and replaced it with one whose judges were appointed by the Governor); Rabinowitz, supra, at 269-270 (the North Carolina Legislature divested voters of the right to elect justices of the peace and county commissioners, then arrogated to itself the authority to select justices of the peace and gave them the power to select commissioners).
This Court did not stand idly by. In Alabama, for example, the legislature responded to increased black voter registration in the city of Tuskegee by amending the State Constitution to authorize legislative abolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala. Const. Amdt. 406 (1982), and by redrawing the city's boundaries to remove all the black voters "while not removing a single white voter," Gomillion v. Lightfoot, 364 U.S. 339, 341, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The Court intervened, finding it "inconceivable that guaranties embedded in the Constitution" could be "manipulated out of existence" by being "cloaked in the garb of [political] realignment." Id., at 345, 81 S.Ct. 125 (internal quotation marks omitted).
Other States similarly disregarded this Court's mandate by changing their political process. See, e.g., Bush v. Orleans Parish School Bd., 187 F.Supp. 42, 44-45 (E.D.La.1960) (the Louisiana Legislature gave the Governor the authority to supersede any school board's decision to integrate); Extension of the Voting Rights Act, Hearings on H.R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 146-149 (1969) (statement of Thomas E. Harris, Assoc. Gen. Counsel, American Federation of Labor and Congress of Industrial Organizations) (the Mississippi Legislature removed from the people the right to elect superintendents of education in 11 counties and instead made those positions appointive).
The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron, 358 U.S. 1, 5, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). On the very day the Court announced that ruling, the Arkansas Legislature responded by changing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long as the Governor determined that local officials could not maintain "`a general, suitable, and efficient educational system.'" Aaron v. Cooper, 261 F.2d 97, 99 (C.A.8 1958) (per curiam) (quoting Arkansas statute). The then-Governor immediately closed all of Little Rock's high schools. Id., at 99-100; see also S. Breyer, Making Our Democracy Work 49-67 (2010) (discussing the events in Little Rock).
The States' political restructuring efforts in the 1960's and 1970's went beyond the context of education. Many States tried to suppress the political voice of racial minorities more generally by reconfiguring the manner in which they filled vacancies in local offices, often transferring authority from the electorate (where minority citizens had a voice at the local level) to the States' executive branch (where minorities wielded little if any influence). See, e.g., 1981 Hearings, pt. 1, at 815 (report of J. Cox & A. Turner) (the Alabama Legislature changed all municipal judgeships from elective to appointive offices); id., at 1955 (report of R. Hudlin & K. Brimah, Voter Educ. Project, Inc.) (the Georgia Legislature eliminated some elective offices and made others appointive when it appeared that a minority candidate would be victorious); id., at 501 (statement of Frank R. Parker, Director, Lawyers' Comm. for Civil Rights Under Law) (the Mississippi Legislature changed the manner of filling vacancies for various public offices from election to appointment).
It was in this historical context that the Court intervened in Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), and Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187,
In Hunter, the City Council of Akron, Ohio, enacted a fair housing ordinance to "assure 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 (internal quotation marks omitted). A majority of the citizens of Akron disagreed with the ordinance and overturned it. But the majority did not stop there; it also amended the city charter to prevent the City Council from implementing any future ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the Akron electorate. Ibid. That amendment changed the rules of the political process in Akron. The Court described the result of the change as follows:
The Court invalidated the Akron charter amendment under the Equal Protection Clause. It concluded that the amendment unjustifiably "place[d] special burdens on racial minorities within the governmental process," thus effecting "a real, substantial, and invidious denial of the equal protection of the laws." Hunter, 393 U.S., at 391, 393, 89 S.Ct. 557. The Court characterized the amendment as "no more permissible" than denying racial minorities the right to vote on an equal basis with the majority. Id., at 391, 89 S.Ct. 557. For a "State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size." Id., at 392-393, 89 S.Ct. 557. The vehicle for the change — a popular referendum — did not move the Court: "The sovereignty of the people," it explained, "is itself subject to ... constitutional limitations." Id., at 392, 89 S.Ct. 557.
Justice Harlan, joined by Justice Stewart, wrote in his concurrence that although a State can normally allocate political power according to any general principle, it bears a "far heavier burden of justification" when it reallocates political power based on race, because the selective reallocation necessarily makes it far more difficult for racial minorities to "achieve legislation that is in their interest." Id., at 395, 89 S.Ct. 557 (internal quotation marks omitted).
In Seattle, a case that mirrors the one before us, the Court applied Hunter to invalidate a statute, enacted by a majority of Washington State's citizens, that prohibited racially integrative busing in the wake of Brown. As early as 1963, Seattle's School District No. 1 began taking steps to cure the de facto racial segregation in its schools. 458 U.S., at 460-461, 102 S.Ct. 3187. Among other measures, it enacted a desegregation plan that made extensive use of busing and mandatory assignments.
The Court invalidated the initiative under the Equal Protection Clause. It began by observing that equal protection of the laws "guarantees racial minorities the right to full participation in the political life of the community." Id., at 467, 102 S.Ct. 3187. "It is beyond dispute," the Court explained, "that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner." Ibid. But the Equal Protection Clause reaches further, the Court stated, reaffirming the principle espoused in Hunter — that while "laws structuring political institutions or allocating political power according to neutral principles" do not violate the Constitution, "a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process." 458 U.S., at 470, 102 S.Ct. 3187. That kind of state action, it observed, "places special burdens on racial minorities within the governmental process," by making it "more difficult for certain racial and religious minorities" than for other members of the community "to achieve legislation ... in their interest." Ibid.
Rejecting the argument that the initiative had no racial focus, the Court found that the desegregation of public schools, like the Akron housing ordinance, "inure[d] primarily to the benefit of the minority, and [was] designed for that purpose." Id., at 472, 102 S.Ct. 3187. Because minorities had good reason to "consider busing for integration to be `legislation that is in their interest,'" the Court concluded that the "racial focus of [the initiative] ... suffice[d] to trigger application of the Hunter doctrine." Id., at 474, 102 S.Ct. 3187 (quoting Hunter, 393 U.S., at 395, 89 S.Ct. 557 (Harlan, J. concurring)).
The Court next concluded that "the practical effect of [the initiative was] to work a reallocation of power of the kind condemned in Hunter." Seattle, 458 U.S., at 474, 102 S.Ct. 3187. It explained: "Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board." Ibid. Thus, the initiative required those in favor of racial integration in public schools to "surmount a considerably higher hurdle than persons seeking comparable legislative action" in different contexts. Ibid.
The Court reaffirmed that the "`simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.'" Id., at 483, 102 S.Ct. 3187 (quoting Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527,
Hunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence as it is essential: The majority may not suppress the minority's right to participate on equal terms in the political process. Under this doctrine, governmental action deprives minority groups of equal protection when it (1) has a racial focus, targeting a policy or program that "inures primarily to the benefit of the minority," Seattle, 458 U.S., at 472, 102 S.Ct. 3187; and (2) alters the political process in a manner that uniquely burdens racial minorities' ability to achieve their goals through that process. A faithful application of the doctrine resoundingly resolves this case in respondents' favor.
Section 26 has a "racial focus." Seattle, 458 U.S., at 474, 102 S.Ct. 3187. That is clear from its text, which prohibits Michigan's public colleges and universities from "grant[ing] preferential treatment to any individual or group on the basis of race." Mich. Const., Art. I, § 26. Like desegregation of public schools, race-sensitive admissions policies "inur[e] primarily to the benefit of the minority," 458 U.S., at 472, 102 S.Ct. 3187, as they are designed to increase minorities' access to institutions of higher education.
It is worth emphasizing, moreover, that § 26 is relevant only to admissions policies that have survived strict scrutiny under Grutter; other policies, under this Court's rulings, would be forbidden with or without § 26. A Grutter-compliant admissions policy must use race flexibly, not maintain a quota; must be limited in time; and must be employed only after "serious, good faith consideration of workable race-neutral alternatives," 539 U.S., at 339, 123 S.Ct. 2325. The policies banned by § 26 meet all these requirements and thus already constitute the least restrictive ways to advance Michigan's compelling interest in diversity in higher education.
Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that consider racial diversity.
Long before the enactment of § 26, the Michigan Constitution granted plenary authority over all matters relating to Michigan's public universities, including admissions criteria, to each university's eight-member governing board. See Mich. Const., Art. VIII, § 5 (establishing 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 boards have the "power to enact ordinances, by-laws and regulations for the government of the university." Mich. Comp. Laws Ann. § 390.5 (West 2010); see also § 390.3 ("The government of the university is vested in the board of regents"). They are "`constitutional corporation[s] of independent authority, which, within the scope of [their] functions, [are] co-ordinate with and equal to ... the legislature.'" Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 84, n. 8, 594 N.W.2d 491, 496, n. 8 (1999).
The boards are indisputably a part of the political process in Michigan. Each political party nominates two candidates for membership to each board, and board members are elected to 8-year terms in the general statewide election. See Mich.
Before the enactment of § 26, Michigan's political structure permitted both supporters and opponents of race-sensitive admissions policies to vote for their candidates of choice and to lobby the elected and politically accountable boards. Section 26 reconfigured that structure. After § 26, the boards retain plenary authority over all admissions criteria except for race-sensitive admissions policies.
And the costs of qualifying an amendment are significant. For example, "[t]he vast majority of petition efforts ... require initiative sponsors to hire paid petition circulators, at significant expense." Segura Brief 10; see also T. Donovan, C. Mooney, & D. Smith, State and Local Politics: Institutions and Reform 96 (2012) (hereinafter Donovan) ("In many states, it is difficult to place a measure on the ballot unless professional petition firms are paid to collect some or all the signatures required for qualification"); Tolbert, supra, at 35 ("`Qualifying an initiative for the statewide ballot is ... no longer so much a measure of general citizen interest as it is a test of fundraising ability'"). In addition to the cost of collecting signatures, campaigning for a majority of votes is an expensive endeavor, and "organizations advocating on behalf of marginalized groups remain ... outmoneyed by corporate, business, and professional organizations." Strolovitch & Forrest, Social and Economic Justice Movements and Organizations,
Michigan's Constitution has only rarely been amended through the initiative process. Between 1914 and 2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20 have passed. See Segura Brief 12. Minority groups face an especially uphill battle. See Donovan 106 ("[O]n issues dealing with racial and ethnic matters, studies show that racial and ethnic minorities do end up more on the losing side of the popular vote"). In fact, "[i]t is difficult to find even a single statewide initiative in any State in which voters approved policies that explicitly favor racial or ethnic minority groups."
This is the onerous task that § 26 forces a Michigan citizen to complete in order to change the admissions policies of Michigan's public colleges and universities with respect to racial sensitivity. While substantially less grueling paths remain open to those advocating for any other admissions policies, a constitutional amendment is the only avenue by which race-sensitive admissions policies may be obtained. The effect of § 26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.
Such reordering of the political process contravenes Hunter and Seattle.
The plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to contort that case into one that "rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities." Ante, at 1632. And the plurality recasts Seattle "as a case in which the state action in question ... had the serious risk, if not purpose, of causing specific injuries on account of race." Ante, at 1633. According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.
The plurality identifies "invidious discrimination" as the "necessary result" of the restructuring in Hunter. Ante, at 1632-1633. It is impossible to assess whether the housing amendment in Hunter was motivated by discriminatory purpose, for the opinion does not discuss the question of intent.
Similarly, the plurality disregards what Seattle actually says and instead opines that "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." Ante, at 1638. Here, the plurality derives its conclusion not from Seattle itself, but from evidence unearthed more than a quarter-century later in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701,
Again, the plurality might prefer that the Seattle Court had said that, but it plainly did not. Not once did the Court suggest the presence of de jure segregation in Seattle. Quite the opposite: The opinion explicitly suggested the desegregation plan was adopted to remedy de facto rather than de jure segregation. See 458 U.S., at 472, n. 15, 102 S.Ct. 3187 (referring to the "absen[ce]" of "a finding of prior de jure segregation"). The Court, moreover, assumed that no "constitutional violation" through de jure segregation had occurred. Id., at 474, 102 S.Ct. 3187. And it unmistakably rested its decision on Hunter, holding Seattle's initiative invalid because it "use[d] the racial nature of an issue to define the governmental decisionmaking structure, and thus impose[d] substantial and unique burdens on racial minorities." 458 U.S., at 470, 102 S.Ct. 3187.
It is nothing short of baffling, then, for the plurality to insist — in the face of clear language in Hunter and Seattle saying otherwise — that those cases were about nothing more than the intentional and invidious infliction of a racial injury. Ante, at 1632 (describing the injury in Hunter as "a demonstrated injury on the basis of race"); ante, at 1632-1633 (describing the injury in Seattle as an "injur[y] on account of race"). The plurality's attempt to rewrite Hunter and Seattle so as to cast aside the political-process doctrine sub silentio is impermissible as a matter of stare decisis. Under the doctrine of stare decisis, we usually stand by our decisions, even if we disagree with them, because people rely on what we say, and they believe they can take us at our word.
And what now of the political-process doctrine? After the plurality's revision of Hunter and Seattle, it is unclear what is left. The plurality certainly does not tell us. On this point, and this point only, I agree with Justice SCALIA that the plurality has rewritten those precedents beyond recognition. See ante, at 1641-1643 (opinion concurring in judgment).
Justice BREYER concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the relevant decisionmaking authority from one political level to another; rather, it removed that authority from "unelected actors and placed it in the hands of the voters." Ante, at 1650 (opinion concurring in judgment). He bases this conclusion on the premise that Michigan's elected boards "delegated admissions-related decisionmaking authority to unelected university
For one thing, it is undeniable that prior to § 26, board candidates often pledged to end or carry on the use of race-sensitive admissions policies at Michigan's public universities. See supra, at 1660-1661. Surely those were not empty promises. Indeed, the issue of race-sensitive admissions policies often dominated board elections. See, e.g., George, Detroit Free Press, at 2B (observing that "[t]he race for the University of Michigan Board of Regents could determine ... the future of [the University's] affirmative action policies"); Kosseff, UM Policy May Hang On Election, Crain's Detroit Business, Sept. 18, 2000, p. 1 (noting that an upcoming election could determine whether the University would continue to defend its affirmative action policies); University of Michigan's Admissions Policy Still an Issue for Regents' Election, Black Issues in Higher Education, Oct. 21, 2004, p. 17 (commenting that although "the Supreme Court struck down the University of Michigan's undergraduate admissions policy as too formulaic," the issue "remains an important [one] to several people running" in an upcoming election for the Board of Regents).
Moreover, a careful examination of the boards and their governing structure reveals that they remain actively involved in setting admissions policies and procedures. Take Wayne State University, for example. Its Board of Governors has enacted university statutes that govern the day-to-day running of the institution. See Wayne State Univ. Stat., online at http://bog.wayne.edu/code. A number of those statutes establish general admissions procedures, see § 2.34.09 (establishing undergraduate admissions procedures); § 2.34.12 (establishing graduate admissions procedures), and some set out more specific instructions for university officials, see, e.g., § 2.34.09.030 ("Admissions decisions will be based on a full evaluation of each student's academic record, and on empirical data reflecting the characteristics of students who have successfully graduated from [the university] within the four years prior to the year in which the student applies"); §§ 2.34.12.080, 2.34.12.090 (setting the requisite grade point average for graduate applicants).
The Board of Governors does give primary responsibility over day-to-day admissions matters to the university's President. § 2.34.09.080. But the President is "elected by and answerable to the Board." Brief for Respondent Board of Governors of Wayne State University et al. 15. And while university officials and faculty members "serv[e] an important advisory role in recommending educational policy," id., at 14, the Board alone ultimately controls educational policy and decides whether to adopt (or reject) program-specific admissions recommendations. For example, the Board has voted on recommendations "to revise guidelines for establishment of honors curricula, including admissions criteria"; "to modify the honor point criteria for graduate admission"; and "to modify the maximum number of transfer credits that the university would allow in certain cases where articulation agreements rendered modification appropriate." Id., at 17; see also id., at 18-20 (providing examples of the Board's "review[ing] and pass[ing] upon admissions requirements in the course of voting on broader issues, such as the implementation of new academic programs"). The Board also "engages in robust and regular review of administrative actions involving admissions policy and related matters." Id., at 16.
Other public universities more clearly entrust admissions policy to university officials. The Board of Regents of the University of Michigan, for example, gives primary
The boards retain ultimate authority to adopt or reject admissions policies in at least three ways. First, they routinely meet with university officials to review admissions policies, including race-sensitive admissions policies. For example, shortly after this Court's decisions in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter, 539 U.S., at 306, 123 S.Ct. 2325, the President of the University of Michigan appeared before the University's Board of Regents to discuss the impact of those decisions on the University. See Proceedings 2003-2004, pp. 10-12 (July 2003), online at http://name.umdl.umich.edu/ACW7513.2003.001. Six members of the Board voiced strong support for the University's use of race as a factor in admissions. Id., at 11-12. In June 2004, the President again appeared before the Board to discuss changes to undergraduate admissions policies. Id., at 301 (June 2004). And in March 2007, the University's Provost appeared before the Board of Regents to present strategies to increase diversity in light of the passage of Proposal 2. Proceedings 2006-2007, pp. 264-265 (Mar. 2007), online at http://name.umdl.umich.edu/ACW7513.2006.001.
Second, the boards may enact bylaws with respect to specific admissions policies and may alter any admissions policies set by university officials. The Board of Regents may amend any bylaw "at any regular meeting of the board, or at any special meeting, provided notice is given to each regent one week in advance." Bylaws § 14.03. And Michigan State University's Board of Trustees may, "[u]pon the recommendation of the President[,] ... determine and establish the qualifications of students for admissions at any level." Bylaws, Art. 8. The boards may also permanently remove certain admissions decisions from university officials.
Finally, the boards may appoint university officials who share their admissions goals, and they may remove those officials if the officials' goals diverge from those of the boards. The University of Michigan's Board of Regents "directly appoints [the University's] Associate Vice Provost and Executive Director of Undergraduate Admissions," and Michigan State University's Board of Trustees elects that institution's President. Brief for Respondents Regents of the University of Michigan, the Board of
The salient point is this: Although the elected and politically accountable boards may well entrust university officials with certain day-to-day admissions responsibilities, they often weigh in on admissions policies themselves and, at all times, they retain complete supervisory authority over university officials and over all admissions decisions.
There is no question, then, that the elected boards in Michigan had the power to eliminate or adopt race-sensitive admissions policies prior to § 26. There is also no question that § 26 worked an impermissible reordering of the political process; it removed that power from the elected boards and placed it instead at a higher level of the political process in Michigan. See supra, at 1660-1663. This case is no different from Hunter and Seattle in that respect. Just as in Hunter and Seattle, minorities in Michigan "participated in the political process and won." Ante, at 1650-1651 (BREYER, J., concurring in judgment). And just as in Hunter and Seattle, "the majority's subsequent reordering of the political process repealed the minority's successes and made it more difficult for the minority to succeed in the future," thereby "diminish[ing] the minority's ability to participate meaningfully in the electoral process." Ibid. There is therefore no need to consider "extend[ing] the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one," ibid. Such a scenario is not before us.
The political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a matter of first principles.
Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives, and the overriding principle that there are nonetheless some things the Constitution forbids even a majority of citizens to do. The political-process doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule.
The Fourteenth Amendment instructs that all who act for the government may not "deny to any person ... the equal protection of the laws." We often think of equal protection as a guarantee that the government will apply the law in an equal fashion — that it will not intentionally discriminate against minority groups. But equal protection of the laws means more than that; it also secures the right of all citizens to participate meaningfully and equally in the process through which laws are created.
Few rights are as fundamental as the right to participate meaningfully and equally in the process of government. See Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 S.Ct. 220 (1886) (political rights are "fundamental" because they are "preservative of all rights"). That right is the bedrock of our democracy, recognized from its very inception. See J. Ely, Democracy and Distrust 87 (1980) (the Constitution "is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes," and on the other, "with ensuring broad participation in the processes and distributions of government").
This should come as no surprise. The political process is the channel of change.
This right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on the vital importance of safeguarding minority groups' access to the political process in United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 S.Ct. 1234 (1938), a case that predated Hunter by 30 years. In a now-famous footnote, the Court explained that while ordinary social and economic legislation carries a presumption of constitutionality, the same may not be true of legislation that offends fundamental rights or targets minority groups. Citing cases involving restrictions on the right to vote, restraints on the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly, the Court recognized that "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" could be worthy of "more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation." Id., at 152, n. 4, 58 S.Ct. 778; see also Ely, supra, at 76 (explaining that "[p]aragraph two [of Carolene Products footnote 4] suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open"). The Court also noted that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Carolene Products, 304 U.S., at 153, n. 4, 58 S.Ct. 778, see also Ely, supra, at 76 (explaining that "[p]aragraph three [of Carolene Products footnote 4] suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws `directed at' religious, national and racial minorities and those infected by prejudice against them").
The values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed, Seattle explicitly relied on Carolene Products. See 458 U.S., at 486, 102 S.Ct. 3187 ("[W]hen the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the `special condition' of prejudice, the governmental action seriously `curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities'" (quoting Carolene Products, 304 U.S., at 153, n. 4, 58 S.Ct. 778)). These values are central tenets of our equal protection jurisprudence.
Our cases recognize at least three features of the right to meaningful participation in the political process. Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote. See Shaw v. Reno, 509 U.S. 630, 639, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). This, woefully, has not always been the case. But it is a right no one would take issue with today. Second, the majority may not make it more difficult for
My colleagues would stop at the second. The plurality embraces the freedom of "self-government" without limits. See ante, at 1645-1646. And Justice SCALIA values a "near-limitless" notion of state sovereignty. See ante, at 1645-1646 (opinion concurring in judgment). The wrong sought to be corrected by the political-process doctrine, they say, is not one that should concern us and is in any event beyond the reach of the Fourteenth Amendment. As they see it, the Court's role in protecting the political process ends once we have removed certain barriers to the minority's participation in that process. Then, they say, we must sit back and let the majority rule without the key constitutional limit recognized in Hunter and Seattle.
That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today's decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why? For the same reason we guard the right of every citizen to vote. If "[e]fforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot," were "`second-generation barriers'" to minority voting, Shelby County v. Holder, 570 U.S. ___, ___, 133 S.Ct. 2612, 2634, 186 L.Ed.2d 651 (2013) (GINSBURG, J., dissenting), efforts to reconfigure the political process in ways that uniquely disadvantage minority groups who have already long been disadvantaged are third-generation barriers. For as the Court recognized in Seattle, "minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups `from effective participation in the political proces[s].'"
To reiterate, none of this is to say that the political-process doctrine prohibits the exercise of democratic self-government. Nothing prevents a majority of citizens from pursuing or obtaining its preferred outcome in a political contest. Here, for instance, I agree with the plurality that Michiganders who were unhappy with Grutter were free to pursue an end to race-sensitive admissions policies in their State. See ante, at 1647-1648. They were free to elect governing boards that opposed race-sensitive admissions policies or, through public discourse and dialogue, to lobby the existing boards toward that end. They were also free to remove from the boards the authority to make any decisions with respect to admissions policies, as opposed to only decisions concerning race-sensitive admissions policies. But what the majority could not do, consistent with the Constitution, is change the ground rules of the political process in a manner that makes it more difficult for racial minorities alone to achieve their goals. In doing so, the majority effectively rigs the contest to guarantee a particular outcome. That is the very wrong the political-process doctrine seeks to remedy. The doctrine "hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner's course." BAMN v. Regents of Univ. of Michigan, 701 F.3d 466, 474 (C.A.6 2012).
The political-process doctrine also follows from the rest of our equal protection jurisprudence — in particular, our reapportionment and vote dilution cases. In those cases, the Court described the right to vote as "`the essence of a democratic society.'" Shaw, 509 U.S., at 639, 113 S.Ct. 2816. It rejected States' use of ostensibly race-neutral measures to prevent minorities from exercising their political rights. See id., at 639-640, 113 S.Ct. 2816. And it invalidated practices such as at-large electoral systems that reduce or nullify a minority group's ability to vote as a cohesive unit, when those practices were adopted with a discriminatory purpose. Id., at 641, 113 S.Ct. 2816. These cases, like the political-process doctrine, all sought to preserve the political rights of the minority.
Two more recent cases involving discriminatory restructurings of the political process are also worthy of mention: Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), and League of United Latin American Citizens v. Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006) (LULAC).
Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption
LULAC, a Voting Rights Act case, involved an enactment by the Texas Legislature that redrew district lines for a number of Texas seats in the House of Representatives. 548 U.S., at 409, 126 S.Ct. 2594 (plurality opinion). In striking down the enactment, the Court acknowledged the "`long, well-documented history of discrimination'" in Texas that "`touched upon the rights of ... Hispanics to register, to vote, or to participate otherwise in the electoral process,'" id., at 439, 126 S.Ct. 2594, and it observed that that the "`political, social, and economic legacy of past discrimination' ... may well [have] `hinder[ed] their ability to participate effectively in the political process,'" id., at 440, 126 S.Ct. 2594. Against this backdrop, the Court found that just as "Latino voters were poised to elect their candidate of choice," id., at 438, 126 S.Ct. 2594, the State's enactment "took away [their] opportunity because [they] were about to exercise it," id., at 440, 126 S.Ct. 2594. The Court refused to sustain "the resulting vote dilution of a group that was beginning to achieve [the] goal of overcoming prior electoral discrimination." Id., at 442, 126 S.Ct. 2594.
As in Romer, the LULAC Court — while using a different analytic framework — applied the core teaching of Hunter and Seattle: The political process cannot be restructured in a manner that makes it more difficult for a traditionally excluded group to work through the existing process to seek beneficial policies. And the events giving rise to LULAC are strikingly similar to those here. Just as redistricting prevented Latinos in Texas from attaining a benefit they had fought for and were poised to enjoy, § 26 prevents racial minorities in Michigan from enjoying a last-resort benefit that they, too, had fought for through the existing political processes.
My colleagues claim that the political-process doctrine is unadministrable and contrary to our more recent equal protection precedents. See ante, at 1644-1647 (plurality opinion); ante, at 1642-1648 (SCALIA, J., concurring in judgment). It is only by not acknowledging certain strands of our jurisprudence that they can reach such a conclusion.
Start with the claim that Hunter and Seattle are no longer viable because of
But even assuming that strict scrutiny should apply to policies designed to benefit racial minorities, that view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32 years undermines the principles announced in those cases.
Justice SCALIA first argues that the political-process doctrine "misreads the Equal Protection Clause to protect `particular group[s],'" running counter to a line of cases that treat "`equal protection as a personal right.'" Ante, at 1644 (opinion concurring in judgment) (quoting Adarand, 515 U.S., at 230, 115 S.Ct. 2097). Equal protection, he says, protects "`persons, not groups.'" Ante, at 1644 (quoting Adarand, 515 U.S., at 227, 115 S.Ct. 2097). This criticism ignores the obvious: Discrimination against an individual occurs because of that individual's membership in a particular group. Yes, equal protection is a personal right, but there can be no equal protection violation unless the injured individual is a member of a protected group or a class of individuals. It is membership in the group — here the racial minority — that gives rise to an equal protection violation.
Relatedly, Justice SCALIA argues that the political-process doctrine is inconsistent
Justice SCALIA is troubled that the political-process doctrine has not been applied to trigger strict scrutiny for political restructurings that burden the majority. But the doctrine is inapplicable to the majority. The minority cannot achieve such restructurings against the majority, for the majority is, well, the majority. As the Seattle Court explained, "`[t]he majority needs no protection against discriminat[ory restructurings], and if it did, a referendum, [for instance], might be bothersome but no more than that.'" 458 U.S., at 468, 102 S.Ct. 3187. Stated differently, the doctrine protects only the minority because it implicates a problem that affects only the minority. Nothing in my opinion suggests, as Justice SCALIA says, that under the political-process doctrine, "the Constitution prohibits discrimination against minority groups, but not against majority groups." Ante, at 1644, n. 7. If the minority somehow managed to effectuate a political restructuring that burdened only the majority, we could decide then whether to apply the political-process doctrine to safeguard the political right of the majority. But such a restructuring is not before us, and I cannot fathom how it could be achieved.
Justice SCALIA next invokes state sovereignty, arguing that "we have emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit." Ante, at 1646 (opinion concurring in judgment). But state sovereignty is not absolute; it is subject to constitutional limits. The Court surely did not offend state sovereignty by barring States from changing their voting procedures to exclude racial minorities. So why does the political-process doctrine offend state sovereignty? The doctrine takes nothing away from state sovereignty that the Equal Protection Clause does not require. All it says is that a State may not reconfigure its existing political processes in a manner that establishes a distinct and more burdensome process for minority members of our society alone to obtain legislation in their interests.
More broadly, Justice SCALIA is troubled that the political-process doctrine would create supposed "affirmative-action safe havens" in places where the ordinary political process has thus far produced race-sensitive admissions policies. Ante, at 1645-1647. It would not. As explained previously, the voters in Michigan who opposed race-sensitive admissions policies had any number of options available to them to challenge those policies. See supra, at 1669-1670. And in States where decisions regarding race-sensitive admissions policies are not subject to the political process in the first place, voters are entirely free to eliminate such policies via a constitutional amendment because that action would not reallocate power in the manner condemned in Hunter and Seattle (and, of course, present here). The Seattle Court recognized this careful balance
The same is true of Michigan.
Finally, Justice SCALIA disagrees with "the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact." Ante, at 1647 (opinion concurring in judgment). He would acknowledge, however, that an act that draws racial distinctions or makes racial classifications triggers strict scrutiny regardless of whether discriminatory intent is shown. See Adarand, 515 U.S., at 213, 115 S.Ct. 2097. That should settle the matter: Section 26 draws a racial distinction. As the Seattle Court explained, "when the political process or the decisionmaking mechanism used to address racially conscious legislation — and only such legislation — is singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on `distinctions based on race.'" 458 U.S., at 485, 102 S.Ct. 3187 (some internal quotation marks omitted); see also id., at 470, 102 S.Ct. 3187 (noting that although a State may "`allocate governmental power on the basis of any general principle,'" it may not use racial considerations "to define the governmental decisionmaking structure").
But in Justice SCALIA's view, cases like Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), call Seattle into question. It is odd to suggest that prior precedents call into question a later one. Seattle (decided in 1982) postdated both Washington v. Davis (1976) and Arlington Heights (1977). Justice SCALIA's suggestion that Seattle runs afoul of the principles established in Washington v. Davis and Arlington Heights would come as a surprise to Justice Blackmun, who joined the majority opinions in all three cases. Indeed, the Seattle Court explicitly rejected the argument that Hunter had been effectively overruled by Washington v. Davis and Arlington Heights:
And it concluded that both the Hunter amendment and the Seattle initiative rested on distinctions based on race. 458 U.S., at 485, 102 S.Ct. 3187. So does § 26.
My colleagues also attack the first prong of the doctrine as "rais[ing] serious constitutional concerns," ante, at 1634 (plurality opinion), and being "unadministrable," ante, at 1642-1643 (SCALIA, J., concurring in judgment). Justice SCALIA wonders whether judges are equipped to weigh in on what constitutes a "racial issue." See ante, at 1643. The plurality, too, thinks courts would be "with no clear legal standards or accepted sources to guide judicial decision." Ante, at 1635. Yet as Justice SCALIA recognizes, Hunter and Seattle provide a standard: Does the public policy at issue "inur[e] primarily to the benefit of the minority, and [was it] designed for that purpose"? Seattle, 458 U.S., at 472, 102 S.Ct. 3187; see ante, at 1643. Surely this is the kind of factual inquiry that judges are capable of making. Justice SCALIA, for instance, accepts the standard announced in Washington v. Davis, which requires judges to determine whether discrimination is intentional or whether it merely has a discriminatory effect. Such an inquiry is at least as difficult for judges as the one called for by Hunter and Seattle. In any event, it is clear that the constitutional amendment in this case has a racial focus; it is facially race-based and, by operation of law, disadvantages only minorities. See supra, at 1659-1660.
"No good can come" from these inquiries, Justice SCALIA responds, because they divide the Nation along racial lines and perpetuate racial stereotypes. Ante, at 1643-1644. The plurality shares that view; it tells us that we must not assume all individuals of the same race think alike. See ante, at 1644-1645. The same could have been said about desegregation: Not all members of a racial minority in Seattle necessarily regarded the integration of public schools as good policy. Yet the Seattle Court had little difficulty saying that school integration as a general matter "inure[d] ... to the benefit of" the minority. 458 U.S., at 472, 102 S.Ct. 3187.
My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. See ante, at 1645-1646 (plurality opinion) ("Racial division would be validated, not discouraged, were the Seattle formulation ... to remain in force"); ante, at 1643-1644 (SCALIA, J., concurring in judgment) ("`[R]acial stereotyping [is] at odds with equal protection mandates'"). We have seen this reasoning before. See Parents Involved, 551 U.S., at 748, 127 S.Ct. 2738 ("The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as "not sufficient" to resolve cases of this nature. Id., at 788, 127 S.Ct. 2738 (KENNEDY, J., concurring in part and concurring in judgment). While "[t]he enduring hope is that race should not matter[,] the reality is that too often it does." Id., at 787, 127 S.Ct. 2738. "[R]acial discrimination ... [is] not ancient history." Bartlett v. Strickland, 556 U.S. 1, 25, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (plurality opinion).
Race also matters because of persistent racial inequality in society — inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U.S., at 298-300, 123 S.Ct. 2411 (GINSBURG, J., dissenting) (cataloging the many ways in which "the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools," in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U.S., at 273, 115 S.Ct. 2097 (GINSBURG, J., dissenting) (recognizing that the "lingering effects" of discrimination, "reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods").
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman's sense of self when she states her hometown, and then is pressed, "No, where are you really from?", regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: "I do not belong here."
In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
Although the only constitutional rights at stake in this case are process-based rights, the substantive policy at issue is undeniably of some relevance to my colleagues. See ante, at 1648 (plurality opinion) (suggesting that race-sensitive admissions policies have the "potential to become ... the source of the very resentments and hostilities based on race that this Nation seeks to put behind it"). I will therefore speak in response.
For over a century, racial minorities in Michigan fought to bring diversity to their State's public colleges and universities. Before the advent of race-sensitive admissions policies, those institutions, like others
The housing and extracurricular policies at these institutions also perpetuated open segregation. For instance, incoming students were permitted to opt out of rooming with black students. Anderson, supra, at 7-8. And some fraternities and sororities excluded black students from membership. Id., at 6-7.
In 1966, the Defense Department conducted an investigation into the University's compliance with Title VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for minority students. Id., at 9. In 1970, a student group launched a number of protests, including a strike, demanding that the University increase its minority enrollment. Id., at 16-23. The University's Board of Regents responded, adopting a goal of 10 percent black admissions by the fall of 1973. Id., at 23.
During the 1970's, the University continued to improve its admissions policies,
Race-sensitive admissions policies are now a thing of the past in Michigan after § 26, even though — as experts agree and as research shows — those policies were making a difference in achieving educational diversity. In Grutter, Michigan's Law School spoke candidly about the strides the institution had taken successfully because of race-sensitive admissions. One expert retained by the Law School opined that a race-blind admissions system would have a "very dramatic, negative effect on underrepresented minority admissions." Grutter, 539 U.S., at 320, 123 S.Ct. 2325 (internal quotation marks omitted). He testified that the school had admitted 35 percent of underrepresented minority students who had applied in 2000, as opposed to only 10 percent who would have been admitted had race not been considered. Ibid. Underrepresented minority students would thus have constituted 4 percent, as opposed to the actual 14.5 percent, of the class that entered in 2000. Ibid.
Michigan tells a different story. It asserts that although the statistics are difficult to track, "the number of underrepresented minorities ... [in] the entering freshman class at Michigan as a percentage changed very little" after § 26. Tr. of Oral Arg. 15. It also claims that "the statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses" — all except Berkeley — than before California's equivalent initiative took effect. Id., at 16. As it turns out, these statistics weren't "`even good enough to be wrong.'" Reference Manual on Scientific Evidence 4 (2d ed. 2000) (Introduction by Stephen G. Breyer (quoting Wolfgang Pauli)).
Section 26 has already led to decreased minority enrollment at Michigan's public colleges and universities. In 2006 (before § 26 took effect), underrepresented minorities made up 12.15 percent of the University of Michigan's freshman class, compared to 9.54 percent in 2012 — a roughly 25 percent decline. See University of Michigan — New Freshman Enrollment Overview, Office of the Registrar, online at http://www.ro.umich.edu/report/10enrolloverview.pdf and http://www.ro.umich.edu/report/12enrollmentsummary.pdf.
A recent study also confirms that § 26 has decreased minority degree attainment in Michigan. The University of Michigan's graduating class of 2012, the first admitted after § 26 took effect, is quite different from previous classes. The proportion of black students among those attaining bachelor's degrees was 4.4 percent, the lowest since 1991; the proportion of black students among those attaining master's degrees was 5.1 percent, the lowest since 1989; the proportion of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 1993; and the proportion of black students among those attaining professional school degrees was 3.5 percent, the lowest since the mid-1970's. See Kidder, Restructuring Higher Education Opportunity?: African American Degree Attainment After Michigan's Ban on Affirmative Action, p. 1 (Aug. 2013), online at http://papers.ssrn.com/sol3/abstract=2318523.
The President and Chancellors of the University of California (which has 10 campuses, not 17) inform us that "[t]he abandonment of race-conscious admissions policies resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, were admitted to, and enrolled at" the university. Brief for President and Chancellors of the University of California as Amici Curiae 10 (hereinafter President and Chancellors Brief). At the University of California, Los Angeles (UCLA), for example, admission rates for underrepresented minorities plummeted from 52.4 percent in 1995 (before California's ban took effect) to 24 percent in 1998. Id., at 12. As a result, the percentage of underrepresented minorities fell by more than half: from 30.1 percent of the entering class in 1995 to 14.3 percent in 1998. Ibid. The admissions rate for underrepresented
The elimination of race-sensitive admissions policies in California has been especially harmful to black students. In 2006, for example, there were fewer than 100 black students in UCLA's incoming class of roughly 5,000, the lowest number since at least 1973. See id., at 24.
The University of California also saw declines in minority representation at its graduate programs and professional schools. In 2005, underrepresented minorities made up 17 percent of the university's new medical students, which is actually a lower rate than the 17.4 percent reported in 1975, three years before Bakke. President and Chancellors Brief 13. The numbers at the law schools are even more alarming. In 2005, underrepresented minorities made up 12 percent of entering law students, well below the 20.1 percent in 1975. Id., at 14.
As in Michigan, the declines in minority representation at the University of California have come even as the minority population in California has increased. At UCLA, for example, the proportion of Hispanic freshmen among those enrolled declined from 23 percent in 1995 to 17 percent in 2011, even though the proportion of Hispanic college-aged persons in California increased from 41 percent to 49 percent during that same period. See Fessenden and Keller.
And the proportion of black freshmen among those enrolled at UCLA declined from 8 percent in 1995 to 3 percent in 2011, even though the proportion of black college-aged persons in California increased from 8 percent to 9 percent during that same period. See ibid.
While the minority admissions rates at UCLA and Berkeley have decreased, the number of minorities enrolled at colleges across the county has increased. See Phillips, Colleges Straining to Restore Diversity: Bans on Race-Conscious Admissions Upend Racial Makeup at California Schools, Wall Street Journal, Mar. 7, 2014, p. A3.
The President and Chancellors assure us that they have tried. They tell us that notwithstanding the university's efforts for the past 15 years "to increase diversity on [the University of California's] campuses through the use of race-neutral initiatives," enrollment rates have "not rebounded ... [or] kept pace with the demographic changes among California's graduating high-school population." President and Chancellors Brief 14. Since Proposition 209 took effect, the university has spent over a half-billion dollars on programs and policies designed to increase diversity. Phillips, supra, at A3. Still, it has been unable to meet its diversity goals. Ibid. Proposition 209, it says, has "`completely changed the character' of the university." Ibid. (quoting the Associate President and Chief Policy Advisor of the University of California).
These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation's colleges and universities were to discard those policies altogether. See ante, at 1638-1639 (ROBERTS, C.J., concurring) (suggesting that race-sensitive admissions policies might "do more harm than good"); ante, at 1644, n. 6 (SCALIA, J., concurring in judgment); Grutter, 539 U.S., at 371-373, 123 S.Ct. 2325 (THOMAS, J., concurring in part and dissenting in part); id., at 347-348, 123 S.Ct. 2325 (SCALIA, J., concurring in part and dissenting in part). That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin, 570 U.S. ___, 133 S.Ct. 2411, 186 L.Ed.2d 474 (2013), that race-sensitive admissions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.
This Court has recognized that diversity in education is paramount. With good reason. Diversity ensures that the next generation moves beyond the stereotypes, the assumptions, and the superficial perceptions that students coming from less-heterogeneous communities may harbor, consciously or not, about people who do not look like them. Recognizing the need for diversity acknowledges that, "[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters." Grutter, 539 U.S., at 333, 123 S.Ct. 2325. And it acknowledges that "to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Id., at 332, 123 S.Ct. 2325.
Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby
To be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court today regarding the constitutionality of § 26. But I cannot ignore the unfortunate outcome of today's decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan's public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body.
The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.
In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan's elected university boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards' plenary authority to make all other educational decisions. "In a most direct sense, this implicates the judiciary's special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Seattle, 458 U.S., at 486, 102 S.Ct. 3187 (internal quotation marks omitted). The Court abdicates that role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan. The result is that Michigan's public colleges and universities are less equipped to do their part in ensuring that students of all races are "better prepare[d] ... for an increasingly diverse workforce and society..." Grutter, 539 U.S., at 330, 123 S.Ct. 2325 (internal quotation marks omitted).
Today's decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.
I respectfully dissent.
The Crawford Court distinguished Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), by clarifying that the charter amendment in Hunter was "something more than a mere repeal" because it altered the framework of the political process. 458 U.S., at 540, 102 S.Ct. 3211. And the Seattle Court drew the same distinction when it held that the initiative "work[ed] something more than the `mere repeal' of a desegregation law by the political entity that created it." 458 U.S., at 483, 102 S.Ct. 3187.
