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April 22, 2014 11:20 AM Latest From SCOTUS on Race-Based Affirmative Action

By Ed Kilgore

In the long and torturous line of judicial precedents governing affirmative action, it’s not clear whether today’s 6-2 SCOTUS decision in Schuette v. Coalition to Defend Affirmative Action will be considered much more than a footnote. It held that a Michigan voter initiative placing a ban on racial preferences in college admissions did not itself violate the U.S. Constitution by creating a disproportionate burden for those favoring race-based admissions criteria. The 9th Circuit earlier reached the same conclusion with respect to a voter ban on affirmative action policies in California; the 6th Circuit narrowly ruled otherwise in a Michigan case.

The decision does not modify existing precedents on the constitutional permissibility of race-based college admissions policies, but simply makes it clear voters can ban them via state constitutional amendments even if the bans do not limit other preferential admissions policies (e.g., for “legacies”).

If an increasingly conservative Court ultimately places new constitutional restricts on affirmative action, perhaps this decision will appear to be a way station in that trend. Otherwise, it is simply a restriction on judicial remedies protecting race-based affirmative action from hostile action by legislatures and voters.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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