Majority — KAGAN J.
"(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district 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.
"(2) The state 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.
"(3) For the purposes of this section 'state' includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1."
Syllabus
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 NecessaryThe 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
Concurrence — ROBERTS C.J.
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.
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321 , 337, 26 S.Ct. 282 , 50 L.Ed. 499 .
1 For simplicity's sake, I use "respondent" or "respondents" throughout the opinion to describe only those parties who are adverse to petitioner, not Eric Russell, a respondent who supports petitioner.
I
A
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
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.[4] That the district's effort to end racial imbalance had been stymied by Initiative 350 meant that the people, by passing it, somehow had become complicit in Seattle's equal-protection-denying status quo, whether they knew it or not. Hence, there was in Seattle a government-furthered "infliction of a specific"-and, presumably, constitutional-"injury." Ante, at 1635 - 1636.
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.,
2 The plurality cites evidence from Justice BREYER's dissent 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), to suggest that the city had been a "partial" cause of its segregation problem. Ante, at 1633. The plurality in Parents Involved criticized that dissent for relying on irrelevant evidence, for "elid[ing the] distinction between de jure and de facto segregation," and for "casually intimat[ing] that Seattle's school attendance patterns reflect[ed] illegal segregation." 551 U.S., at 736-737 , and n. 15, 127 S.Ct. 2738 . Today's plurality sides with the dissent and repeats its errors.
3 Or so the Court assumed. See 458 U.S., at 472, n. 15, 102 S.Ct. 3187 ("Appellants and the United States do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation. We therefore do not specifically pass on that 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
4 The dissent's version of this test is just as scattershot. Since, according to the dissent, the doctrine forbids "reconfigur[ing] the political process in a manner that burdens only a racial minority," post, at 1653 (opinion of SOTOMAYOR, J.) (emphasis added), it must be that that the reason the underlying issue (that is, the issue concerning which the process has been reconfigured) is "racial" is that the policy in question benefits only a racial minority (if it also benefitted persons not belonging to a racial majority, then the political-process reconfiguration would burden them as well). On second thought: The issue is "racial" if the policy benefits primarily a racial minority and " '[is] designed for that purpose,' " post, at 1675. This is the standard Seattle purported to apply. But under that standard, § 26 does not affect a "racial issue," because under Grutter v. Bollinger, 539 U.S. 306 , 123 S.Ct. 2325 , 156 L.Ed.2d 304 (2003), race-based admissions policies may not constitutionally be "designed for [the] purpose," Seattle, supra, at 472, 102 S.Ct. 3187 , of benefitting primarily racial minorities, but must be designed for the purpose of achieving educational benefits for students of all races, Grutter,supra, at 322-325, 123 S.Ct. 2325 . So the dissent must mean that an issue is "racial" so long as the policy in question has the incidental effect (an effect not flowing from its design) of benefiting primarily racial minorities.
5 And how many members of a particular racial group must take the same position on an issue before we suppose that the position is in the entire group 's interest? Not every member, the dissent suggests, post, at 1675. Beyond that, who knows? Five percent? Eighty-five percent?
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 L.Ed. 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
8 Cf., e.g., Ackerman, Beyond Carolene Products, 98 Harv. L.Rev. 713 , 723-724 (1985) ("Other things being equal, 'discreteness and insularity' will normally be a source of enormous bargaining advantage, not disadvantage, for a group engaged in pluralist American politics. Except for special cases, the concerns that underlie Carolene should lead judges to protect groups that possess the opposite characteristic from the ones Carolene emphasizes-groups that are 'anonymous and diffuse' rather than 'discrete and insular' ").
C
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
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
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.[12]
10 According to the dissent, Hunter - Seattle fills an important doctrinal gap left open by Washington v. Davis, since Hunter - Seattle 's rule-unique among equal-protection principles-makes clear that "the majority" may not alter a political process with the goal of "prevent[ing] minority groups from partaking in that process on equal footing." Post, at 1669. Nonsense. There is no gap. To "manipulate the ground rules," post, at 1670, or to "ri[g] the contest," post, at 1670, in order to harm persons because of their race is to deny equal protection under Washington v. Davis .
* * *
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 L.Ed. 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.[13]
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.
11 And doubly shameful to equate "the majority" behind § 26 with "the majority" responsible for Jim Crow. Post, at 1651 - 1652 (SOTOMAYOR, J., dissenting).
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
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.
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
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
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
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
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.
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,
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 L.Ed. 759 (1927), Texas responded by changing the rules. It enacted
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
II
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).
I
t 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
A
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:
"[T]o enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council." Seattle, 458 U.S., at 468 , 102 S.Ct. 3187 (describing Hunter ; emphasis deleted).
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
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 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
1
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.[17]
4 Justice SCALIA accuses me of crafting my own version (or versions) of the racial-focus prong. See ante, at 1643, n. 4 (opinion concurring in judgment). I do not. I simply apply the test announced in Seattle : whether the policy in question "inures primarily to the benefit of the minority." 458 U.S., at 472, 102 S.Ct. 3187 . Justice SCALIA ignores this analysis, see Part II-B-1, supra, and instead purports to identify three versions of the test that he thinks my opinion advances. The first-whether " 'the policy in question benefits only a racial minority,' " ante, at 1643, n. 4 (quoting supra, at 1641 - 1642)-misunderstands the doctrine and misquotes my opinion. The racial-focus prong has never required a policy to benefit only a minority group. The sentence from which Justice SCALIA appears to quote makes the altogether different point that the political-process doctrine is obviously not implicated in the first place by a restructuring that burdens members of society equally. This is the second prong of the political-process doctrine. See supra, at 1641 - 1642 (explaining that the political-process doctrine is implicated "[w]hen the majority reconfigures the political process in a manner that burdens only a racial minority"). The second version-which asks whether a policy "benefits primarily a racial minority," ante, at 1643, n. 4-is the one articulated by the Seattle Court and, as I have explained, see supra, at 1647 and this page, it is easily met in this case. And the third-whether the policy has "the incidental effect" of benefitting racial minorities," ante, at 1643, n. 4-is not a test I advance at all.
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
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.
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
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.[18] 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. See Mich. Const., Art. XII, §§ 1, 2. Since more than 3.2 million votes were cast in the 2010 election for Governor, more than 320,000 signatures are currently needed to win a ballot spot. See Brief for Gary Segura et al. as Amici Curiae 9 (hereinafter Segura Brief). Moreover, "[t]o account for invalid and duplicative signatures, initiative sponsors 'need to
5 By stripping the governing boards of the authority to decide whether to adopt race-sensitive admissions policies, the majority removed the decision from bodies well suited to make that decision: boards engaged in the arguments on both sides of a matter, which deliberate and then make and refine "considered judgment[s]" about racial diversity and admissions policies, see Grutter, 539 U.S., at 387 , 123 S.Ct. 2325 (KENNEDY, J., dissenting).
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."[19] Segura Brief 13.
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
6 In the face of this overwhelming evidence, Justice SCALIA claims that it is actually easier, not harder, for minorities to effectuate change at the constitutional amendment level than at the board level. See ante, at 1644 - 1645 (opinion concurring in judgment) ("voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles"). This claim minimizes just how difficult it is to amend the State Constitution. See supra, at 1660 - 1662. It is also incorrect in its premise that minorities must elect an entirely new slate of board members in order to effectuate change at the board level. Justice SCALIA overlooks the fact that minorities need not elect any new board members in order to effect change; they may instead seek to persuade existing board members to adopt changes in their interests.
Such reordering of the political process contravenes Hunter and Seattle .[20] See Seattle,
7 I do not take the position, as Justice SCALIA asserts, that the process of amending the Michigan Constitution is not a part of Michigan's existing political process. See ante, at 1645 - 1647 (opinion concurring in judgment). It clearly is. The problem with § 26 is not that "amending Michigan's Constitution is simply not a part of that State's 'existing political process.' " Ante, at 1632 - 1633. It is that § 26 reconfigured the political process in Michigan such that it is now more difficult for racial minorities, and racial minorities alone, to achieve legislation in their interest. Section 26 elevated the issue of race-sensitive admissions policies, and not any other kinds of admissions policies, to a higher plane of the existing political process in Michigan: that of a constitutional amendment.
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.[21] What is obvious, however, is that the possibility of invidious discrimination played no role in the Court's reasoning. We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said. The Hunter Court was clear about why it invalidated the Akron charter amendment: It was impermissible as a restructuring of the political process, not as an action motivated by discriminatory intent. See 393 U.S., at 391 , 89 S.Ct. 557 (striking down the Akron charter amendment because it "places a special burden on racial minorities within the governmental process").
8 It certainly is fair to assume that some voters may have supported the Hunter amendment because of discriminatory animus. But others may have been motivated by their strong beliefs in the freedom of contract or the freedom to alienate property. Similarly, here, although some Michiganders may have voted for § 26 out of racial animus, some may have been acting on a personal belief, like that of some of my colleagues today, that using race-sensitive admissions policies in higher education is unwise. The presence (or absence) of invidious discrimination has no place in the current analysis. That is the very purpose of the political-process doctrine; it operates irrespective of discriminatory intent, for it protects a process-based right.
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).
2
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
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
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
10 Under the bylaws of the University of Michigan's Board of Regents, "[a]ny and all delegations of authority made at any time and from time to time by the board to any member of the university staff, or to any unit of the university may be revoked by the board at any time, and notice of such revocation shall be given in writing." Bylaws § 14.04, online at http://www.regents.umich.edu/bylaws.
III
The political-process doctrine not only resolves this case as a matter of stare decisis ; it is correct as a matter of first principles.
A
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
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 L.Ed. 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.
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
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
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].' "[25] 458 U.S., at 486, 102 S.Ct. 3187 .
12 Preserving the right to participate meaningfully and equally in the process of government is especially important with respect to education policy. I do not mean to suggest that "the constitutionality of laws forbidding racial preferences depends on the policy interest at stake." Ante, at 1636 (plurality opinion). I note only that we have long recognized that " 'education ... is the very foundation of good citizenship.' " Grutter, 539 U.S., at 331, 123 S.Ct. 2325 (quoting Brown v. Board of Education, 347 U.S. 483 , 493, 74 S.Ct. 686 , 98 L.Ed. 873 (1954) ). Our Nation's colleges and universities "represent the training ground for a large number of our Nation's leaders," and so there is special reason to safeguard the guarantee " 'that public institutions are open and available to all segments of American society, including people of all races and ethnicities.' " 539 U.S., at 331-332, 123 S.Ct. 2325 .
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).
B
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
IV
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.
A
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.
1
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
Relatedly, Justice SCALIA argues that the political-process doctrine is inconsistent
2
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
"[W]e do not undervalue the magnitude of the State's interest in its system of education. Washington could have reserved to state officials the right to make all decisions in the areas of education and student assignment. It has chosen, however, to use a more elaborate system; having done so, the State is obligated to operate that system within the confines of the Fourteenth Amendment." 458 U.S., at 487, 102 S.Ct. 3187 .
The same is true of Michigan.
3
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
"There is one immediate and crucial difference between Hunter and [those cases]. While decisions such as Washington v. Davis and Arlington Heights considered classifications facially unrelated to race, the charter amendment at issue in Hunter dealt in explicitly racial terms with legislation designed to benefit minorities 'as minorities,' not legislation intended to benefit some larger group of underprivileged citizens among whom minorities were disproportionately represented." 458 U.S., at 485, 102 S.Ct. 3187 .
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.[27]
14 The plurality raises another concern with respect to precedent. It points to decisions by the California Supreme Court and the United States Court of Appeals for the Ninth Circuit upholding as constitutional Proposition 209, a California constitutional amendment identical in substance to § 26. Ante, at 1635 - 1636. The plurality notes that if we were to affirm the lower court's decision in this case, "those holdings would be invalidated...." Ibid. I fail to see the significance. We routinely resolve conflicts between lower courts; the necessary result, of course, is that decisions of courts on one side of the debate are invalidated or called into question. I am unaware of a single instance where that (inevitable) fact influenced the Court's decision one way or the other. Had the lower courts proceeded in opposite fashion-had the California Supreme Court and Ninth Circuit invalidated Proposition 209 and the Sixth Circuit upheld § 26 -would the plurality come out the other way?
"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 .
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.
V
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
A
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
During the 1970's, the University continued to improve its admissions policies,[28] encouraged by this Court's 1978 decision in Bakke . In that case, the Court told our Nation's colleges and universities that they could consider race in admissions as part of a broader goal to create a diverse student body, in which students of different backgrounds would learn together, and thereby learn to live together. A little more than a decade ago, in Grutter, the Court reaffirmed this understanding. In upholding the admissions policy of the Law School, the Court laid to rest any doubt whether student body diversity is a compelling interest that may justify the use of race.
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
15 In 1973, the Law School graduated 41 black students (out of a class of 446) and the first Latino student in its history. App. in Grutter v. Bollinger, O.T. 2002, No. 02-241, p. 204. In 1976, it graduated its first Native American student. Ibid. On the whole, during the 1970's, the Law School graduated 262 black students, compared to 9 in the previous decade, along with 41 Latino students. Ibid.
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/10enroll overview.pdf and http://www.ro.umich.edu/report/12enrollmentsummary.pdf.[29] Moreover, the total number of college-aged underrepresented minorities in Michigan has increased even as the number of underrepresented minorities admitted to the University has decreased . For example, between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent.
16 These percentages include enrollment statistics for black students, Hispanic students, Native American students, and students who identify as members of two or more underrepresented minority groups.
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
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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
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
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 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
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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
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).[9] Yet Seattle insists that only those political-process
6 The dissent proves my point. After asserting-without citation, though I and many others of all races deny it-that it is "common-sense reality" that affirmative action benefits racial minorities, post, at 1660, the dissent suggests throughout, e.g., post, at 1667 - 1668, that that view of "reality" is so necessarily shared by members of racial minorities that they must favor affirmative action.
7 The dissent contends, post, at 1672, that this point "ignores the obvious: Discrimination against an individual occurs because of that individual's membership in a particular group." No, I do not ignore the obvious; it is the dissent that misses the point. Of course discrimination against a group constitutes discrimination against each member of that group. But since it is persons and not groups that are protected, one cannot say, as the dissent would, that the Constitution prohibits discrimination against minority groups, but not against majority groups.
I
part ways with Hunter , Seattle , and (I think) the plurality for an additional reason: Each endorses a version of the
9 The dissent thinks I do not understand its argument. Only when amending Michigan's Constitution violates Hunter -Seattle , it says, is that constitutionally prescribed activity necessarily not part of the State's existing political process. Post, at 1662 - 1663, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan's action here unconstitutional? Because it violates Hunter -Seattle . And why does it violate Hunter -Seattle ? Because it is not part of the State's existing political process. And why is it not part of the State's existing political process? Because it violates Hunter -Seattle .
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
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
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
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.[14] 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[15] -were
1 I of course do not mean to suggest that Michigan's voters acted with anything like the invidious intent, see n. 8, infra, of those who historically stymied the rights of racial minorities. Contra, ante, at 1648, n. 11 (SCALIA, J., concurring in judgment). But like earlier chapters of political restructuring, the Michigan amendment at issue in this case changed the rules of the political process to the disadvantage of minority members of our society.
2 Although the term "affirmative action" is commonly used to describe colleges' and universities' use of race in crafting admissions policies, I instead use the term "race-sensitive admissions policies." Some comprehend the term "affirmative action" as connoting intentional preferential treatment based on race alone-for example, the use of a quota system, whereby a certain proportion of seats in an institution's incoming class must be set aside for racial minorities; the use of a "points" system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court's decision in Grutter v. Bollinger, 539 U.S. 306 , 123 S.Ct. 2325 , 156 L.Ed.2d 304 (2003). There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly, id., at 334 , 123 S.Ct. 2325 , and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341-343 , 123 S.Ct. 2325 , and must be employed only after "serious, good faith consideration of workable race-neutral alternatives," id., at 339 , 123 S.Ct. 2325 . Grutter -compliant admissions plans, like the ones in place at Michigan's institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentionally and solely on the basis of race.
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
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 L.Ed. 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 L.Ed. 1281 (1939). The Court struck down that statute as well. Id., at 275 , 59 S.Ct. 872 .
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
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3 In Crawford, the Court confronted an amendment to the California Constitution prohibiting state courts from mandating pupil assignments unless a federal court would be required to do so under the Equal Protection Clause. We upheld the amendment as nothing more than a repeal of existing legislation: The standard previously required by California went beyond what was federally required; the amendment merely moved the standard back to the federal baseline. The Court distinguished the amendment from the one in Seattle because it left the rules of the political game unchanged. Racial minorities in Crawford, unlike racial minorities in Seattle , could still appeal to their local school districts for relief. 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 .
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1
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
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 .
9 The plurality relies on Justice BREYER's dissent in Parents Involved to conclude that "one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools." Ante, at 1633. Remarkably, some Members of today's plurality criticized Justice BREYER'S reading of the record in Parents Involved itself. See 551 U.S., at 736 , 127 S.Ct. 2738 .
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
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
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 L.Ed. 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
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
11 Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U.S. ----, ----, 133 S.Ct. 2612 , 2626-2627, 186 L.Ed.2d 651 (2013) (GINSBURG, J., dissenting) (describing recent examples of discriminatory changes to state voting laws, including a 1995 dual voter registration system in Mississippi to disfranchise black voters, a 2000 redistricting plan in Georgia to decrease black voting strength, and a 2003 proposal to change the voting mechanism for school board elections in South Carolina). Until this Court's decision last Term in Shelby County, the preclearance requirement of § 5 of the Voting Rights Act of 1965 blocked those and many other discriminatory changes to voting procedures.
13 The Court invalidated Amendment 2 on the basis that it lacked any rational relationship to a legitimate end. It concluded that the amendment "impose[d] a broad and undifferentiated disability on a single named group," and was "so discontinuous with the reasons offered for it that [it] seem[ed] inexplicable by anything but animus toward the class it affect[ed]." Romer, 517 U.S., at 632 , 116 S.Ct. 1620 .
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
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
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
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
Editor's Note: The preceding image contains the reference for footnote[30] .
17 This chart is reproduced from Fessenden and Keller, How Minorities Have Fared in States with Affirmative Action Bans, N.Y. Times, June 24, 2013, online at http://www.nytimes. com/interactive/2013/06/24/us/affirmative-action-bans.html.
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.
Editor's Note: The preceding image contains the reference for footnote[31] .
18 Ibid.
19 Ibid.
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
20 This chart is reproduced from 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.
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
Footnotes
- * Justice SCALIA and Justice SOTOMAYOR question the relationship between Washington v. Seattle School Dist. No. 1, 458 U.S. 457 , 102 S.Ct. 3187 , 73 L.Ed.2d 896 (1982), and 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). See post, at 1642, n. 2 (SCALIA, J., concurring in judgment); post, at 1664, n. 9 (SOTOMAYOR, J., dissenting). The plurality today addresses that issue, explaining that the race-conscious action in Parents Involved was unconstitutional given the absence of a showing of prior de jure segregation. Parents Involved, supra, at 720-721, 127 S.Ct. 2738 (majority opinion), 736, 127 S.Ct. 2738 (plurality opinion); see ante, at 1633. Today's plurality notes that the Court in Seattle "assumed" the constitutionality of the busing remedy at issue there, " 'even absent a finding of prior de jure segregation.' " Ante, at 1633 (quoting Seattle, supra, at 472, n. 15, 102 S.Ct. 3187 ). The assumption on which Seattle proceeded did not constitute a finding sufficient to justify the race-conscious action in Parents Involved, though it is doubtless pertinent in analyzing Seattle . "As this Court held in Parents Involved, the [Seattle] school board's purported remedial action would not be permissible today absent a showing of de jure segregation," but "we must understand Seattle as Seattle understood itself." Ante, at 1633 (emphasis added).
Cases cited
- Gratz v. Bollinger 539 U.S. 244 at 270, at 306, at 320, at 371-373, at 333, at 330, at 301, at 298-300 p. 298, p. 363, p. 383, p. 390, p. 391, p. 392, p. 1672, p. 1676, p. 1677, p. 1678
- Grutter v. Bollinger 539 U.S. 306 at 343, at 342, at 339 p. 298, p. 301, p. 316, p. 317, p. 333, p. 339, p. 352, p. 363, p. 365, p. 383, p. 384, p. 387, p. 390, p. 391, p. 392, p. 1640, p. 1649
- 539 F.Supp.2d 924 539 F.Supp.2d 924 p. 300, p. 1648
- 592 F.Supp.2d 948 592 F.Supp.2d 948 p. 300
- 652 F.3d 607 652 F.3d 607 at 633-646 p. 300
- Washington v. Seattle School District No. 1 458 U.S. 457 at 472, at 474, at 468, at 475, at 495, at 466, at 460-461, at 470, at 486, at 487, at 485, at 471-472, at 473, at 483-484, at 467 p. 300, p. 305, p. 306, p. 307, p. 309, p. 318, p. 320, p. 322, p. 323, p. 325, p. 327, p. 329, p. 335, p. 341, p. 347, p. 348, p. 349, p. 350, p. 351, p. 352, p. 360, p. 367, p. 369, p. 377, p. 378, p. 379, p. 392, p. 1633, p. 1641, p. 1643, p. 1648, p. 1650, p. 1657, p. 1658, p. 1659, p. 1662, p. 1663, p. 1664, p. 1665, p. 1673
- 701 F.3d 466 701 F.3d 466 at 475 p. 300, p. 326, p. 335, p. 370
- 133 S.Ct. 1633 133 S.Ct. 1633 p. 300
- Fisher v. Univ. of Tex. At Austin 133 S.Ct. 2411 p. 300, p. 390
- United States v. Lopez 514 U.S. 549 p. 301
- Bond v. United States 131 S.Ct. 2355 at 2364 p. 301, p. 311
- Gregory v. Ashcroft 501 U.S. 452 p. 301
- Reitman v. Mulkey 387 U.S. 369 p. 302, p. 303
- Hunter v. Erickson 393 U.S. 385 at 386, at 391, at 389-390, at 395 p. 303, p. 304, p. 318, p. 319, p. 320, p. 325, p. 335, p. 341, p. 346, p. 347, p. 348, p. 349, p. 358, p. 1632, p. 1641, p. 1650
- Parents Involved in Community Schools v. Seattle School District No. 1 127 S.Ct. 2738 at 748, at 839, at 807-808 p. 306, p. 333, p. 334, p. 380, p. 1633, p. 1648, p. 1650, p. 1664
- Time, Inc. v. Hill 87 S.Ct. 534 p. 307
- Shaw v. Reno 509 U.S. 630 at 639 p. 308, p. 368, p. 371, p. 1644
- Metro Broadcasting, Inc. v. Federal Communications Commission 497 U.S. 547 at 610 p. 308, p. 323, p. 1644
- Brown v. Board of Education 347 U.S. 483 p. 311, p. 1656
- 98 L.Ed. 873 98 L.Ed. 873 at 24 p. 311, p. 1656
- Silverman v. United States 365 U.S. 505 p. 311
- Texas v. Johnson 491 U.S. 397 p. 311
- Johnson v. California 543 U.S. 499 p. 313
- Edmonson v. Leesville Concrete Co. 500 U.S. 614 p. 313
- Sailors v. Board of Education 387 U.S. 105 p. 314, p. 315
- Freeman v. Pitts 503 U.S. 467 at 495-496 p. 318, p. 322
- Washington v. Davis 426 U.S. 229 p. 318, p. 377
- City of Richmond v. J. A. Croson Co. 488 U.S. 469 p. 325, p. 1673
- Miller v. Johnson 115 S.Ct. 2475 p. 325, p. 1644
- Adarand Constructors, Inc. v. Pena 115 S.Ct. 2097 at 230 p. 325, p. 374, p. 377, p. 381, p. 1644, p. 1672
- Regents of the University of California v. Bakke 438 U.S. 265 at 359, at 289-290 p. 325, p. 339, p. 374, p. 1673
- United States v. Carolene Products Co. 304 U.S. 144 at 152, at 153 p. 325, p. 326, p. 367, p. 368, p. 1668
- Hernandez v. New York 500 U.S. 352 p. 330
- Village of Arlington Heights v. Metropolitan Housing Development Corp. 429 U.S. 252 p. 330, p. 377
- Crawford v. Board of Education 458 U.S. 527 p. 330, p. 1648, p. 1659
- Plessy v. Ferguson 163 U.S. 537 p. 332
- Nixon v. Herndon 273 U.S. 536 p. 343
- Gomillion v. Lightfoot 364 U.S. 339 p. 344, p. 345
- 261 F.2d 97 261 F.2d 97 at 99-100, at 1955, at 501 p. 346
- Yick Wo v. Hopkins 118 U.S. 356 p. 366
- 6 S.Ct. 1064 6 S.Ct. 1064 at 152 p. 366, p. 367
- Shelby Cnty. v. Holder 133 S.Ct. 2612 at 2619 p. 369, p. 1676
- Romer v. Evans 517 U.S. 620 at 623-624 p. 371, p. 372, p. 1671
- League of United Latin American Citizens v. Perry 548 U.S. 399 at 632, at 409 p. 371, p. 372
- Wygant v. Jackson Board of Education 476 U.S. 267 p. 374
- Fullilove v. Klutznick 448 U.S. 448 p. 374
- Bartlett v. Strickland 556 U.S. 1 p. 380
- 122 F.3d 692 122 F.3d 692 at 391, at 371-373 p. 1631, p. 1632, p. 1636, p. 1640, p. 1648, p. 1673
- 147 F.3d 854 147 F.3d 854 p. 1635, p. 1636
- Holt Civic Club v. City of Tuscaloosa 439 U.S. 60 p. 1646
- Hunter v. City of Pittsburgh 207 U.S. 161 p. 1646
- Free Enterprise Fund v. Public Co. Accounting Oversight Board 561 U.S. 477 p. 1651
- Nixon v. Condon 286 U.S. 73 p. 1655
- Smith v. Allwright 321 U.S. 649 p. 1655
- Terry v. Adams 345 U.S. 461 p. 1655
- 97 L.Ed. 1152 97 L.Ed. 1152 p. 1655
- Guinn v. United States 238 U.S. 347 p. 1655
- Lane v. Wilson 307 U.S. 268 p. 1655
- 187 F.Supp. 42 187 F.Supp. 42 p. 1656
- Cooper v. Aaron 358 U.S. 1 p. 1656
- South Carolina v. Katzenbach 383 U.S. 301 p. 1676