Schuette v. BAMN

572 U.S. 291

Case Year: 2014

Case Ruling: 6-2, Reversed

Opinion Justice: Kennedy

FACTS

In Grutter v. Bollinger (2003), the Supreme Court upheld an admission plan at the University of Michigan Law School that gave some preference to minority applicants. After the Court’s decision, in 2006, Michigan voters adopted Proposal 2 (now Art. I, §26 of the State Constitution), which prohibits the use of race-based preferences as part of the admissions process for state universities. Prop 2 passed by passed by a margin of 58 percent to 42 percent.

Several organizations, faculty, students, and prospective applicants to Michigan public universities argued that Prop 2 violated the Fourteenth Amendment’s Equal Protection Clause. A federal district court rejected their challenge and so upheld Prop 2. The U.S. Court of Appeals for the Sixth Circuit reversed, holding that Prop 2 violated the political process doctrine, as derived from the Supreme Court’s decisions in Washington v. Seattle School Dist. No. 1 (1982) and Hunter v. Erickson (1969). Justice Kennedy’s opinion (along with the dissent and the concurrence in the judgment) explains these cases in some detail.

 

JUSTICE KENNEDY ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH THE CHIEF JUSTICE AND JUSTICE ALITO JOIN:

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.

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 (2013). InFisher, 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.” 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.’” While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education.

In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. 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 &ssect;26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Seattle, 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 (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 agreed that the amendment “expressly authorized and constitutionalized the private right to discriminate.” The effect of the state constitutional amendment was to “significantly encourage and involve the State in private racial discriminations.”

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

Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in “‘unhealthful, unsafe, unsanitary and overcrowded conditions.’” 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. 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. 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. 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.” 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.” The Court next found that “the practical effect” of the state initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the state legislature, or from the statewide electorate.” The Court therefore found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.”

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 andHunter. 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.” . . .

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

The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to invalidate Proposal 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.” 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 of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.

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

There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . . consider” to be “‘in their interest.’” 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 court.

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 bySeattle, such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended. . . .

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.” 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. . . .

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. As already noted, those were the circumstances that the Court found present in Mulkey, Hunter, and Seattle. But those circumstances are not present here. . . .

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 states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” 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.’” But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

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.” 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. . . .

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 (1982) and Hunter v. Erickson (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. 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.” 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.

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. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally 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. Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions policies—were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. And this Court twice blessed such efforts—first in Regents of Univ. of Cal. v. Bakke (1978) and again in Grutter v. Bollinger (2003), a case that itself concerned a Michigan admissions policy.

In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies. When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action.

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(1982). 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 (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.

Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-government—because the majority of Michigan citizens “exercised their privilege to enact laws as a basic exercise of their democratic power.” It would be “demeaning to the democratic process,” the plurality concludes, to disturb that decision in any way. This logic embraces majority rule without an important constitutional limit.

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 18. 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—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. 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. . . .

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”; 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.

1. Section 26 has a “racial focus.” 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.” Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” as they are designed to increase minorities’ access to institutions of higher education. . . .

2. 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. . . .

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. To change admissions policies on this one issue, a Michigan citizen must instead amend the Michigan Constitution. That is no small task. To place a proposed constitutional amendment on the ballot requires either the support of two-thirds of both Houses of the Michigan Legislature or a vast number of signatures from Michigan voters—10 percent of the total number of votes cast in the preceding gubernatorial election. . . .

And the costs of qualifying an amendment are significant. . . . In 2008, for instance, over $800 million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more than was spent in the 2006 cycle.

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. . . .

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. Where, as here, the majority alters the political process to the detriment of a racial minority, the governmental action is subject to strict scrutiny. Michigan does not assert that §26 satisfies a compelling state interest. That should settle the matter. . . .

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.” 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.” 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’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. [T]he plurality has rewritten those precedents beyond recognition.

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. . . .

[This] is [not] 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. 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.”

The political-process doctrine also follows from the rest of our equal protection jurisprudence. . . .

Romer v. Evans (1996) 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 of similar ordinances in the future without another amendment to the State Constitution. Although the Court did not apply the political-process doctrine in Romer, the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decision-making authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effectively) . . . . . (describing this type of political restructuring as a “disability” on the minority group). Rather than being able to appeal to municipalities for policy changes, the Court commented, the minority was forced to “enlis[t] the citizenry of Colorado to amend the State Constitution,”—just as in this case. . . .

My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. . . . We have seen this reasoning before. See Parents Involved (“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. While “[t]he enduring hope is that race should not matter[,] the reality is that too often it does.”

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. And although we have made great strides, “voting discrimination still exists; no one doubts that.”

Race also matters because of persistent racial inequality in society&mdasdh;inequality that cannot be ignored and that has produced stark socioeconomic disparities.

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. . . .

I respectfully dissent.