The Supreme Court is not done with affirmative action yet

It's hard to imagine an affirmative action program the Roberts court would uphold

roberts sotomayor
(Image credit: (Getty/John Moore))

This week, the Supreme Court upheld a Michigan initiative that forbade public educational institutions — as well as all state employers and contractors — from considering race as a factor in admissions or hiring, even in the context of affirmative action programs. The direct impact of Schuette v. Coalition to Defend Affirmative Action is likely to be quite limited, but the decision fits into a pattern for the Roberts court that portends a future in which state institutions have little or no leeway to enact affirmative action programs.

Tuesday's case dealt with the question of whether Michigan's voters had violated the equal protection rights of minorities by amending the state's constitution in 2006 to forbid affirmative action. On its face, it might seem like a fairly easy issue to resolve; after all, virtually nobody suggests that states are required to enact affirmative action programs. As Justice Sonia Sotomayor's powerful dissent explained, however, there is significant precedent supporting the claim that such changes to the state's political process violate the 14th Amendment. Nevertheless, a fractured 6–2 majority found that Michigan's amendment was legal.

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