The Supreme Court has said repeatedly that public universities may consider race in their admissions policies.
But may voters instruct them not to do so?
Narrowly tailored affirmative action programs are constitutional. But voters may disagree. If voters can approve laws and constitutional amendments by referendum, cant they similarly decide this policy question?
No, they cant, according to a slew of civil rights and higher education groups that last week attempted to convince the Supreme Court that voters dont have that right. These groups are challenging a 2006 amendment to the Michigan constitution that barred consideration of race, sex or national origin in admission to the states universities.
By enshrining a ban on affirmative action, the groups argue, Michigan voters created a tough path for advocates of a race-based policy to succeed: Their only recourse is excising the amendment. Advocates of any other admissions policy can appeal directly to the universities admissions committees, popularly elected regents or the Michigan legislature.
The Supreme Court is unlikely to agree, and for understandable reasons. This is not a case of a racist majority blocking a policy necessary to ensure equal treatment. Rather, this case involves a sensitive but legitimate policy disagreement that is playing out in many channels across the country. Few would dispute the authority of university regents or the peoples representatives in the legislature to bar the consideration of race in admissions. Its hard, then, to argue that the people themselves dont have the same authority.