Olivas – SCOTUS upholds state ballot ban on race-based admissions

April 22, 2014 – The U.S. Supreme Court has upheld a voter-approved amendment to the Michigan constitution that bans race-based preferences in admissions to the state’s universities. In previous cases, the court ruled that racial considerations can be constitutional if states choose to use them. This case -- known by the acronym BAMN (By Any Means Necessary) for part of the name of the plaintiff’s coalition -- raised the issue of whether voters may prohibit affirmative action plans. University of Houston Law Center Professor Michael A. Olivas, William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance, is a recognized authority on education issues and has followed affirmative action cases for decades as they have made their way through the courts.  Olivas is a prolific writer and the author of numerous books, including Suing Alma Mater: Higher Education and the Courts; No Undocumented Child Left Behind:  Plyler v. Doe and the Education of Undocumented Schoolchildren; and the casebook, The Law and Higher Education: Cases and Materials on Colleges in Court.He answered a few questions about today’s Supreme Court ruling:

Q.  What did the court rule today?

SCOTUS decided that states may enact state-wide ballot measures to determine whether or not race may be used in its public colleges—such as affirmative action in admissions and the like. This is the narrow holding, and reinstates the already-passed ban, voted on several years ago by the Michigan electorate.

Q. Does this affect race-based admissions plans?

If a state enacts such a ban in this way or in other ways (such as statutes, or by individual institutional decision-making), it may do so.

Q. Where does Texas stand on the issue?

Texas public colleges follow the constitutional requirements of Grutter, which allow such colleges to use race in a nuanced and narrowly-tailored fashion.  Texas A&M has chosen not to use race, and then abolished its Aggie legacy plan, which accorded admissions points to children of TAMU alums. The issue of narrow tailoring at issue in Fisher is wending its way back to the U.S. Supreme Court after its earlier remand. Although Fisher’s lawyers have not challenged the constitutionality of the Texas Percentage Plan, which is race-neutral and admitted over half its places to Anglo students at the University of Texas at Austin, she has in essence argued that if such a plan is used, then UT-Austin should be precluded from using race in admissions, even if Grutter allows them to do so. But this ill-advised case is on a parallel path from that traveled by the BAMN (BY ANY MEANS NECESSARY) case decided today.

Q. What is the outlook for affirmative action plans in higher education and elsewhere?

Grutter is still good law, both in the sense that it is a good decision that has continued vitality in its use, and in the sense that it still applies, except where states restrict its use by electoral action or other means.

I think that the real takeaway from the BAMN case is just how bad it is to determine educational policy by statewide ballot measures. It is a bad decision, with the majority apparently believing that we are in a post-racial society, which is demonstrably untrue and inaccurate. But the worst feature is that it encourages states to continue using ballot measures to make higher education policy in admissions, curriculum, hiring, data keeping, and other ways that should be properly restricted to trustees who are elected or appointed, with fiduciary responsibilities. We cannot keep making these large wholesale governance decisions, when higher education admissions and other decision-making can only be made at the individual, retail level.

Such ballot measures are not liberal or conservative, per se, and can be used to defeat bad issues, as the recent anti-gay measure in Colorado failed. However, in a democracy, the better and more efficacious accountability measures are transparency, increased FOIA access, sunshine procedures, legislative hearings, and public attendance—not episodic and politicized ballot measures.