COMMENTARY | One of the most anxiously-awaited Supreme Court decisions has been handed down: According to the Detroit Free Press, the U.S. Supreme Court, in a 6-2 decision, has struck down a federal appellate court’s overruling of a Michigan referendum ending the use of race-based college admissions. Michiganers had decided in 2006, by majority vote, to make admissions at public colleges and universities race-blind, which was promptly appealed as a violation of the U.S. constitution’s equal protection clause. Though the U.S. 6th Circuit Court of Appeals agreed and declared the law unconstitutional, the Supreme Court’s majority has insisted that the appellate court erred in overturning a public referendum.
Importantly, the Supreme Court has not ruled about the merits or constitutionality of affirmative action or race-based college admissions, but rather about the constitutionality of overturning public referendums. This presents many complications for the future: It does not “solve” the ongoing public debate over continued use of affirmative action or race-based admissions/hiring programs and it opens up controversy over public referendums on issues like same-sex marriage.
Michigan plaintiff Jennifer Gratz, who originally sought to end race-based college admissions after being denied entry to the University of Michigan, was asked if she thought the referendum banning the use of race in college admissions was similar to referendums in other states upholding the ban on same-sex marriages. Gratz answered in the negative, claiming that the Michigan referendum was different because it was “not taking something away.” Critics, however, would claim that the referendum, by banning the use of race in college admissions, is taking something away by reinstating a system that unfairly advantages white students, who are statistically more likely to have grown up with more resources and social capital that allow for better college admissions resumes.
Additionally, and more importantly, when is a state referendum valid or invalid? Since the Supreme Court did not argue the validity of race-based admissions it makes it difficult to ascertain what made Michigan’s referendum valid compared to other, perhaps more controversial, referendums. After all, critics could argue that referendums upholding bans on same-sex marriage are “not taking something away” because homosexual relationships themselves are not threatened.
The referendum thing, and the assertion that the U.S. constitution is intended to prevent “tyranny of the majority,” must be more clearly sussed out by the Supreme Court. How is it that the Michigan referendum, which statistically disadvantages minorities who lack money and social capital during their K-12 schooling, is not “tyranny of the majority” while other referendums are indeed “tryannical”?