(Slip Opinion) OCTOBER TERM, 2013 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

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. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. 

COALITION TO DEFEND AFFIRMATIVE ACTION, 

INTEGRATION AND IMMIGRATION RIGHTS AND 

FIGHT FOR EQUALITY BY ANY MEANS NECESSARY 

(BAMN) ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 12–682. Argued October 15, 2013—Decided April 22, 2014 

After this Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the

Equal Protection Clause, Gratz v. Bollinger, 539 U. S. 244, 270, but 

that the law school admission plan’s more limited use did not, Grutter 

v. Bollinger, 539 U. S. 306, 343, Michigan voters adopted Proposal 2,

now Art. I, §26, of the State Constitution, which, as relevant here, 

prohibits the use of race-based preferences as part of the admissions

process for state universities. In consolidated challenges, the District 

Court granted summary judgment to Michigan, thus upholding Proposal 2, but the Sixth Circuit reversed, concluding that the proposal

violated the principles of Washington v. Seattle School Dist. No. 1, 

458 U. S. 457. 

Held: The judgment is reversed. 

701 F. 3d 466, reversed. 

JUSTICE KENNEDY, joined by THE CHIEF JUSTICE and JUSTICE ALITO, 

concluded that there is no authority in the Federal Constitution or in

this Court’s precedents for the Judiciary to set aside Michigan laws 

that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular 

with respect to school admissions. Pp. 4–18.

(a) This case is not about the constitutionality, or the merits, of

race-conscious admissions policies in higher education. Here, the 

principle that the consideration of race in admissions is permissible 
 

 

 

 

 

2 SCHUETTE v. BAMN 

Syllabus 

when certain conditions are met is not being challenged. Rather, the 

question concerns whether, and in what manner, voters in the States 

may choose to prohibit the consideration of such racial preferences. 

Where States have prohibited race-conscious admissions policies,

universities have responded by experimenting “with a wide variety of

alternative approaches.” Grutter, supra, at 342. The decision by

Michigan voters reflects the ongoing national dialogue about such

practices. Pp. 4–5.

(b) The Sixth Circuit’s determination that Seattle controlled here 

extends Seattle’s holding in a case presenting quite different issues to

reach a mistaken conclusion. Pp. 5–18.

(1) It is necessary to consider first the relevant cases preceding 

Seattle and the background against which Seattle arose. Both Reitman v. Mulkey, 387 U. S. 369, and Hunter v. Erickson, 393 U. S. 385, 

involved demonstrated injuries on the basis of race that, by reasons 

of state encouragement or participation, became more aggravated. In 

Mulkey, a voter-enacted amendment to the California Constitution 

prohibiting state legislative interference with an owner’s prerogative 

to decline to sell or rent residential property on any basis barred the

challenging parties, on account of race, from invoking the protection 

of California’s statutes, thus preventing them from leasing residential property. In Hunter, voters overturned an Akron ordinance that 

was enacted to address widespread racial discrimination in housing

sales and rentals had forced many to live in “ ‘unhealthful, unsafe, 

unsanitary and overcrowded’ ” segregated housing, 393 U. S., at 391.

In Seattle, after the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools,

voters passed a state initiative that barred busing to desegregate. 

This Court found that the state initiative had the “practical effect” of 

removing “the authority to address a racial problem . . . from the existing decisionmaking body, in such a way as to burden minority interests” of busing advocates who must now “seek relief from the state

legislature, or from the statewide electorate.” 458 U. S., at 474. 

Pp. 5–8.

(2) Seattle is best understood as a case in which the state action 

had the serious risk, if not purpose, of causing specific injuries on account of race as had been the case in Mulkey and Hunter. While 

there had been no judicial finding of de jure segregation with respect 

to Seattle’s school district, a finding that would be required today, see 

Parents Involved in Community Schools v. Seattle School Dist. No. 1, 

551 U. S. 701, 720–721, Seattle must be understood as Seattle understood itself, as a case in which neither the State nor the United 

States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding 
 

Cite as: 572 U. S. ____ (2014) 3 

Syllabus 

of prior de jure segregation.” 458 U. S. at 472, n. 15. 

Seattle’s broad language, however, went well beyond the analysis 

needed to resolve the case. Seizing upon the statement in Justice 

Harlan’s concurrence in Hunter that the procedural change in that

case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest,” 385 U. S., at 395, the Seattle Court established a new and farreaching rationale: Where a government policy “inures primarily to 

the benefit of the minority” and “minorities . . . consider” the policy to 

be “ ‘in their interest,’ ” then any state action that “place[s] effective 

decisionmaking authority over” that policy “at a different level of 

government” is subject to strict scrutiny. 458 U. S., at 472, 474. 

Pp. 8–11.

(3) To the extent Seattle is read to require the Court to determine

and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision 

in Seattle; it has no support in precedent; and it raises serious equal

protection concerns. In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that all individuals

of the same race think alike, see Shaw v. Reno, 509 U. S. 630, 647, 

but that proposition would be a necessary beginning point were the 

Seattle formulation to control. And if it were deemed necessary to

probe how some races define their own interest in political matters,

still another beginning point would be to define individuals according 

to race. Such a venture would be undertaken with no clear legal 

standards or accepted sources to guide judicial decision. It would also result in, or impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable

constitutionality on their own terms. Assuming these steps could be

taken, the court would next be required to determine the policy

realms in which groups defined by race had a political interest. That 

undertaking, again without guidance from accepted legal standards,

would risk the creation of incentives for those who support or oppose

certain policies to cast the debate in terms of racial advantage or disadvantage. Adoption of the Seattle formulation could affect any 

number of laws or decisions, involving, e.g., tax policy or housing subsidies. And racial division would be validated, not discouraged. 

It can be argued that objections to the larger consequences of the 

Seattle formulation need not be confronted here, for race was an undoubted subject of the ballot issue. But other problems raised by Seattle, such as racial definitions, still apply. And the principal flaw in

the Sixth Circuit’s decision remains: Here there was no infliction of a 

specific injury of the kind at issue in Mulkey and Hunter and in the 

history of the Seattle schools, and there is no precedent for extending 
 

 

 

4 SCHUETTE v. BAMN 

Syllabus 

these cases to restrict the right of Michigan voters to determine that

race-based preferences granted by state entities should be ended.

The Sixth Circuit’s judgment also calls into question other States’ 

long-settled rulings on policies similar to Michigan’s. 

Unlike the injuries in Mulkey, Hunter, and Seattle, the question

here is not how to address or prevent injury caused on account of race 

but whether voters may determine whether a policy of race-based 

preferences should be continued. By approving Proposal 2 and thereby adding §26 to their State Constitution, Michigan voters exercised

their privilege to enact laws as a basic exercise of their democratic

power, bypassing public officials they deemed not responsive to their

concerns about a policy of granting race-based preferences. The 

mandate for segregated schools, Brown v. Board of Education, 347 

U. S. 483, and scores of other examples teach that individual liberty

has constitutional protection. But this Nation’s constitutional system

also embraces the right of citizens to speak and debate and learn and 

then, as a matter of political will, to act through a lawful electoral

process, as Michigan voters have done here. These precepts are not 

inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress 

by the courts. Such circumstances were present in Mulkey, Hunter, 

and Seattle, but they are not present here. Pp. 11–18.

JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that §26 rightly

stands, though not because it passes muster under the politicalprocess doctrine. It likely does not, but the cases establishing that

doctrine should be overruled. They are patently atextual, unadministrable, and contrary to this Court’s traditional equal protection jurisprudence. The question here, as in every case in which neutral 

state action is said to deny equal protection on account of race, is 

whether the challenged action reflects a racially discriminatory purpose. It plainly does not. Pp. 1–18.

(a) The Court of Appeals for the Sixth Circuit held §26 unconstitutional under the so-called political-process doctrine, derived from 

Washington v. Seattle School Dist. No. 1, 458 U. S. 457, and Hunter v. 

Erickson, 393 U. S. 385. In those cases, one level of government exercised borrowed authority over an apparently “racial issue” until a

higher level of government called the loan. This Court deemed each 

revocation an equal-protection violation, without regard to whether

there was evidence of an invidious purpose to discriminate. The relentless, radical logic of Hunter and Seattle would point to a similar 

conclusion here, as in so many other cases. Pp. 3–7.

(b) The problems with the political-process doctrine begin with its

triggering prong, which assigns to a court the task of determining 
 

 

Cite as: 572 U. S. ____ (2014) 5 

Syllabus 

whether a law that reallocates policymaking authority concerns a

“racial issue,” Seattle, 458 U. S., at 473, i.e., whether adopting one

position on the question would “at bottom inur[e] primarily to the

benefit of the minority, and is designed for that purpose,” id., at 472. 

Such freeform judicial musing into ethnic and racial “interests” involves judges in the dirty business of dividing the Nation “into racial 

blocs,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610 

(O’Connor, J., dissenting), and promotes racial stereotyping, see 

Shaw v. Reno, 509 U. S. 630, 647. More fundamentally, the analysis

misreads the Equal Protection Clause to protect particular groups, a 

construction that has been repudiated in a “long line of cases understanding equal protection as a personal right.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 230. Pp. 7–12.

(c) The second part of the Hunter-Seattle analysis 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, supra, at 474; but, in another line of cases, the Court 

has emphasized the near-limitless sovereignty of each State to design

its governing structure as it sees fit, see, e.g., Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71. Taken to the limits of its logic, HunterSeattle is the gaping exception that nearly swallows the rule of structural state sovereignty, which would seem to permit a State to give

certain powers to cities, later assign the same powers to counties, and 

even reclaim them for itself. Pp. 12–15.

(d) Hunter and Seattle also endorse a version of the proposition

that a facially neutral law may deny equal protection solely because 

it has a disparate racial impact. That equal-protection theory has 

been squarely and soundly rejected by an “unwavering line of cases” 

holding “that a violation of the Equal Protection Clause requires

state action motivated by discriminatory intent,” Hernandez v. New 

York, 500 U. S. 352, 372–373 (O’Connor, J., concurring in judgment), 

and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington 

Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 

264–265. Respondents cannot prove that the action here reflects a 

racially discriminatory purpose, for any law expressly requiring state 

actors to afford all persons equal protection of the laws does not— 

cannot—deny “to any person . . . equal protection of the laws,” U. S. 

Const., Amdt. 14, §1. Pp. 15–17.

JUSTICE BREYER agreed that the amendment is consistent with the 

Equal Protection Clause, but for different reasons. First, this case 

addresses the amendment only as it applies to, and forbids, raceconscious admissions programs that consider race solely in order to

obtain the educational benefits of a diverse student body. Second, the 
 

 

 

6 SCHUETTE v. BAMN 

Syllabus 

Constitution permits, but does not require, the use of the kind of 

race-conscious programs now barred by the Michigan Constitution.

It foresees the ballot box, not the courts, as the normal instrument 

for resolving debates about the merits of these programs. Third, 

Hunter v. Erickson, 393 U. S. 385, and Washington v. Seattle School 

Dist. No. 1, 458 U. S. 457, which reflect the important principle that

an individual’s ability to participate meaningfully in the political process should be independent of his race, do not apply here. Those cases involved a restructuring of the political process that changed the

political level at which policies were enacted, while this case involves

an amendment that took decisionmaking authority away from unelected actors and placed it in the hands of the voters. Hence, this 

case does not involve a diminution of the minority’s ability to participate in the political process. Extending the holding of Hunter and 

Seattle to situations where decisionmaking authority is moved from 

an administrative body to a political one would also create significant 

difficulties, given the nature of the administrative process. Furthermore, the principle underlying Hunter and Seattle runs up against a 

competing principle favoring decisionmaking through the democratic 

process. Pp. 1–6.

 KENNEDY, J., announced the judgment of the Court and delivered an

opinion, in which ROBERTS, C. J., and ALITO, J., joined. ROBERTS, C. J., 

filed a concurring opinion. SCALIA, J., filed an opinion concurring in the 

judgment, in which THOMAS, J., joined. BREYER, J., filed an opinion 

concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, 

in which GINSBURG, J., joined. KAGAN, J., took no part in the consideration or decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 572 U. S. ____ (2014) 1 

Opinion of KENNEDY, J. 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 12–682 

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY 

BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT
 

[April 22, 2014] 

JUSTICE KENNEDY announced the judgment of the Court 

and delivered an opinion, in which THE CHIEF JUSTICE 

and JUSTICE ALITO join. 

The Court in this case must determine whether an 

amendment to the Constitution of the State of Michigan, 

approved and enacted by its voters, is invalid under the

Equal Protection Clause of the Fourteenth Amendment to

the Constitution of the United States. 

In 2003 the Court reviewed the constitutionality of two

admissions systems at the University of Michigan, one for 

its undergraduate class and one for its law school. The 

undergraduate admissions plan was addressed in Gratz v. 

Bollinger, 539 U. S. 244. The law school admission plan 

was addressed in Grutter v. Bollinger, 539 U. S. 306. Each 

admissions process permitted the explicit consideration of 

an applicant’s race. In Gratz, the Court invalidated the 

undergraduate plan as a violation of the Equal Protection

Clause. 539 U. S., at 270. In Grutter, the Court found no 
 

2 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

constitutional flaw in the law school admission plan’s 

more limited use of race-based preferences. 539 U. S., at 

343. 

In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process, but the 

revision still allowed limited use of race-based preferences. 

After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the 

voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities 

in Michigan from granting certain preferences, including

race-based preferences, in a wide range of actions and 

decisions. Under the terms of the amendment, race-based 

preferences cannot be part of the admissions process for 

state universities. That particular prohibition is central to 

the instant case. 

The ballot proposal was called Proposal 2 and, after it 

passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, §26, of the Michigan

Constitution. As noted, the amendment is in broad terms. 

Section 26 states, in relevant part, as follows: 

“(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, 
Cite as: 572 U. S. ____ (2014) 3 

Opinion of KENNEDY, J. 

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.” 

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 Necessary (BAMN); students;

faculty; and prospective applicants to Michigan public

universities. The named defendants included thenGovernor Jennifer Granholm, 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 Michigan Attorney General was 

granted leave to intervene as a defendant. The United 

States District Court for the Eastern District of Michigan

consolidated the cases. 

In 2008, the District Court granted summary judgment

to Michigan, thus upholding Proposal 2. BAMN v. Regents 

of Univ. of Mich., 539 F. Supp. 2d 924. The District Court 

denied a motion to reconsider the grant of summary judgment. 592 F. Supp. 2d 948. A panel of the United States 

Court of Appeals for the Sixth Circuit reversed the grant

of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The 

panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle 

School Dist. No. 1, 458 U. S. 457 (1982), and in the cases

that Seattle relied upon. 

The Court of Appeals, sitting en banc, agreed with the

panel decision. 701 F. 3d 466 (CA6 2012). The majority

opinion determined that Seattle “mirrors the [case] before 

us.” Id., at 475. Seven judges dissented in a number of 

opinions. The Court granted certiorari. 568 U. S. ___ 
 

4 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

(2013).

Before the Court addresses the question presented, it is 

important to note what this case is not about. It is not 

about the constitutionality, or the merits, of race-conscious 

admissions policies in higher education. The consideration of race in admissions presents complex questions, in

part addressed last Term in Fisher v. University of Texas 

at Austin, 570 U. S. ––– (2013). In Fisher, the Court did 

not disturb the principle that the consideration of race in 

admissions is permissible, provided that certain conditions 

are met. In this case, as in Fisher, that principle is not 

challenged. The question here concerns not the permissibility of race-conscious admissions policies under the

Constitution but whether, and in what manner, voters in 

the States may choose to prohibit the consideration of 

racial preferences in governmental decisions, in particular

with respect to school admissions.

This Court has noted that some States have decided to 

prohibit race-conscious admissions policies. In Grutter, 

the Court noted: “Universities in California, Florida, and 

Washington State, where racial preferences in admissions

are prohibited by state law, are currently engaged in 

experimenting with a wide variety of alternative approaches. Universities in other States can and should 

draw on the most promising aspects of these race-neutral 

alternatives as they develop.” 539 U. S., at 342 (citing 

United States v. Lopez, 514 U. S. 549, 581 (1995)

(KENNEDY, J., concurring) (“[T]he States may perform

their role as laboratories for experimentation to devise

various solutions where the best solution is far from 

clear”)). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex 

policy question among and within States. There was 

recognition that our federal structure “permits ‘innovation 

and experimentation’” and “enables greater citizen ‘involvement in democratic processes.’” Bond v. United 
 

Cite as: 572 U. S. ____ (2014) 5 

Opinion of KENNEDY, J. 

States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting 

Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)). While this 

case arises in Michigan, the decision by the State’s voters 

reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies 

in higher education. See, e.g., Coalition for Economic 

Equity v. Wilson, 122 F. 3d 692 (CA9 1997).

In Michigan, the State Constitution invests independent 

boards of trustees with plenary authority over public 

universities, including admissions policies. Mich. Const., 

Art. VIII, §5; see also Federated Publications, Inc. v. Board 

of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 

N. W. 2d 491, 497 (1999). Although the members of the 

boards are elected, some evidence in the record suggests

they delegated authority over admissions policy to the 

faculty. But whether the boards or the faculty set the

specific policy, Michigan’s public universities did consider 

race as a factor in admissions decisions before 2006. 

In holding §26 invalid in the context of student admissions at state universities, the Court of Appeals relied in

primary part on Seattle, supra, which it deemed to control 

the case. But that determination extends Seattle’s holding

in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this

further, it is necessary to consider the relevant cases that

preceded Seattle and the background against which Seattle itself arose. 

Though it has not been prominent in the arguments of 

the parties, this Court’s decision in Reitman v. Mulkey, 

387 U. S. 369 (1967), is a proper beginning point for discussing the controlling decisions. In Mulkey, voters 

amended the California Constitution to prohibit any state

legislative interference with an owner’s prerogative to

decline to sell or rent residential property on any basis.

Two different cases gave rise to Mulkey. In one a couple

could not rent an apartment, and in the other a couple 
 

 

 

6 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

were evicted from their apartment. Those adverse actions 

were on account of race. In both cases the complaining 

parties were barred, on account of race, from invoking the 

protection of California’s statutes; and, as a result, they

were unable to lease residential property. This Court 

concluded that the state constitutional provision was a

denial of equal protection. The Court agreed with the 

California Supreme Court that the amendment operated 

to insinuate the State into the decision to discriminate by 

encouraging that practice. The Court noted the “immediate design and intent” of the amendment was to “establis[h] a purported constitutional right to privately discriminate.” Id., at 374 (internal quotation marks omitted and 

emphasis deleted). The Court agreed that the amendment

“expressly authorized and constitutionalized the private

right to discriminate.” Id., at 376. The effect of the state 

constitutional amendment was to “significantly encourage 

and involve the State in private racial discriminations.” 

Id., at 381. In a dissent joined by three other Justices,

Justice Harlan disagreed with the majority’s holding. Id., 

at 387. The dissent reasoned that California, by the action 

of its voters, simply wanted the State to remain neutral in

this area, so that the State was not a party to discrimination. Id., at 389. That dissenting voice did not prevail 

against the majority’s conclusion that the state action in

question encouraged discrimination, causing real and 

specific injury.

The next precedent of relevance, Hunter v. Erickson, 393 

U. S. 385 (1969), is central to the arguments the respondents make in the instant case. In Hunter, the Court for 

the first time elaborated what the Court of Appeals here

styled the “political process” doctrine. There, the Akron 

City Council found that the citizens of Akron consisted of 

“‘people of different race[s], . . . many of whom live in

circumscribed and segregated areas, under sub-standard 

unhealthful, unsafe, unsanitary and overcrowded condi-
Cite as: 572 U. S. ____ (2014) 7 

Opinion of KENNEDY, J. 

tions, because of discrimination in the sale, lease, rental 

and financing of housing.’” Id., at 391. To address the 

problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters

amended the city charter to overturn the ordinance and to

require that any additional antidiscrimination housing 

ordinance be approved by referendum. But most other 

ordinances “regulating the real property market” were not 

subject to those threshold requirements. Id., at 390. The 

plaintiff, a black woman in Akron, Ohio, alleged that her

real estate agent could not show her certain residences

because the owners had specified they would not sell to

black persons.

Central to the Court’s reasoning in Hunter was that the 

charter amendment was enacted in circumstances where 

widespread racial discrimination in the sale and rental of

housing led to segregated housing, forcing many to live in 

“‘unhealthful, unsafe, unsanitary and overcrowded conditions.’” Id., at 391. The Court stated: “It is against this

background that the referendum required by [the charter 

amendment] must be assessed.” Ibid. Akron attempted to

characterize the charter amendment “simply as a public

decision to move slowly in the delicate area of race relations” and as a means “to allow the people of Akron to

participate” in the decision. Id., at 392. The Court rejected 

Akron’s flawed “justifications for its discrimination,” 

justifications that by their own terms had the effect of 

acknowledging the targeted nature of the charter amendment. Ibid. The Court noted, furthermore, that the charter amendment was unnecessary as a general means of 

public control over the city council; for the people of Akron

already were empowered to overturn ordinances by referendum. Id., at 390, n. 6. The Court found that the city

charter amendment, by singling out antidiscrimination 

ordinances, “places special burden on racial minorities

within the governmental process,” thus becoming as im-
 

 

 

8 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

permissible as any other government action taken with

the invidious intent to injure a racial minority. Id., at 391. 

Justice Harlan filed a concurrence. He argued the city

charter amendment “has the clear purpose of making it

more difficult for certain racial and religious minorities to

achieve legislation that is in their interest.” Id., at 395. 

But without regard to the sentence just quoted, Hunter 

rests on the unremarkable principle that the State may 

not alter the procedures of government to target racial 

minorities. The facts in Hunter established that invidious 

discrimination would be the necessary result of the procedural restructuring. Thus, in Mulkey and Hunter, there 

was a demonstrated injury on the basis of race that, by

reasons of state encouragement or participation, became

more aggravated.

 Seattle is the third case of principal relevance here.

There, the school board adopted a mandatory busing 

program to alleviate racial isolation of minority students

in local schools. Voters who opposed the school board’s 

busing plan passed a state initiative that barred busing to

desegregate. The Court first determined that, although

“white as well as Negro children benefit from” diversity, 

the school board’s plan “inures primarily to the benefit of

the minority.” 458 U. S., at 472. The Court next found 

that “the practical effect” of the state initiative was to

“remov[e] the authority to address a racial problem—and 

only a racial problem—from the existing decisionmaking 

body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the 

state legislature, or from the statewide electorate.” Id., at 

474. The Court therefore found that the initiative had 

“explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.” Id., at 470 (emphasis 

deleted). 

Seattle is best understood as a case in which the state 

action in question (the bar on busing enacted by the 
Cite as: 572 U. S. ____ (2014) 9 

Opinion of KENNEDY, J. 

State’s voters) had the serious risk, if not purpose, of 

causing specific injuries on account of race, just as had

been the case in Mulkey and Hunter. Although there had

been no judicial finding of de jure segregation with respect 

to Seattle’s school district, it appears as though school 

segregation in the district in the 1940’s and 1950’s may 

have been the partial result of school board policies that

“permitted white students to transfer out of black schools 

while restricting the transfer of black students into white 

schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) 

(BREYER, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed

a complaint with the Office for Civil Rights, a federal 

agency. The NAACP alleged that the school board had 

maintained a system of de jure segregation. Specifically,

the complaint alleged “that the Seattle School Board had

created or perpetuated unlawful racial segregation

through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white

areas, district line-drawing criteria, the maintenance of

inferior facilities at black schools, the use of explicit racial 

criteria in the assignment of teachers and other staff, and 

a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As 

part of a settlement with the Office for Civil Rights, the 

school board implemented the “Seattle Plan,” which used 

busing and mandatory reassignments between elementary 

schools to reduce racial imbalance and which was the 

subject of the state initiative at issue in Seattle. See 551 

U. S., at 807–812. 

As this Court held in Parents Involved, the school 

board’s purported remedial action would not be permissible today absent a showing of de jure segregation. Id., at 

720–721. That holding prompted JUSTICE BREYER to 

observe in dissent, as noted above, that one permissible 
 

 

10 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

reading of the record was that the school board had maintained policies to perpetuate racial segregation in the

schools. In all events we must understand Seattle as 

Seattle understood itself, as a case in which neither the 

State nor the United States “challenge[d] the propriety of 

race-conscious student assignments for the purpose of

achieving integration, even absent a finding of prior 

de jure segregation.” 458 U. S. at 472, n. 15. In other 

words the legitimacy and constitutionality of the remedy

in question (busing for desegregation) was assumed, and 

Seattle must be understood on that basis. Ibid. Seattle 

involved a state initiative that “was carefully tailored to

interfere only with desegregative busing.” Id., at 471. The 

Seattle Court, accepting the validity of the school board’s 

busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the

school board’s busing remedy was an aggravation of the 

very racial injury in which the State itself was complicit. 

The broad language used in Seattle, however, went well 

beyond the analysis needed to resolve the case. The Court 

there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case

had “the clear purpose of making it more difficult for 

certain racial and religious minorities to achieve legislation that is in their interest.” 385 U. S., at 395. That 

language, taken in the context of the facts in Hunter, is 

best read simply to describe the necessity for finding an

equal protection violation where specific injuries from

hostile discrimination were at issue. The Seattle Court, 

however, used the language from the Hunter concurrence 

to establish a new and far-reaching rationale. Seattle 

stated that where a government policy “inures primarily

to the benefit of the minority” and “minorities . . . consider” the policy to be “ ‘in their interest,’ ” then any state 

action that “place[s] effective decisionmaking authority 

over” that policy “at a different level of government” must 
 

Cite as: 572 U. S. ____ (2014) 11 

Opinion of KENNEDY, J. 

be reviewed under strict scrutiny. 458 U. S., at 472, 474. 

In essence, according to the broad reading of Seattle, any 

state action with a “racial focus” that makes it “more 

difficult for certain racial minorities than for other groups” 

to “achieve legislation that is in their interest” is subject to

strict scrutiny. It is this reading of Seattle that the Court 

of Appeals found to be controlling here. And that reading 

must be rejected.

The broad rationale that the Court of Appeals adopted 

goes beyond the necessary holding and the meaning of the 

precedents said to support it; and in the instant case

neither the formulation of the general rule just set forth 

nor the precedents cited to authenticate it suffice to invalidate Proposal 2. The expansive reading of Seattle has no 

principled limitation and raises serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent Seattle is read to require the 

Court to determine and declare which political policies

serve the “interest” of a group defined in racial terms, that

rationale was unnecessary to the decision in Seattle; it has 

no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide

a proper guide for decisions and should not be deemed 

authoritative or controlling. The rule that the Court of 

Appeals elaborated and respondents seek to establish here 

would contradict central equal protection principles.

In cautioning against “impermissible racial stereotypes,” 

this Court has rejected the assumption that “members of 

the same racial group—regardless of their age, education, 

economic status, or the community in which they live—

think alike, share the same political interests, and will 

prefer the same candidates at the polls.” Shaw v. Reno, 

509 U. S. 630, 647 (1993); see also Metro Broadcasting, 

Inc. v. FCC, 497 U. S. 547, 636 (1990) (KENNEDY, J., dissenting) (rejecting the “demeaning notion that members of 

. . . defined racial groups ascribe to certain ‘minority views’ 
 

 

12 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

that must be different from those of other citizens”). It 

cannot be entertained as a serious proposition that all

individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle 

formulation to control, as the Court of Appeals held it did 

in this case. And if it were deemed necessary to probe how 

some races define their own interest in political matters,

still another beginning point would be to define individuals according to race. But in a society in which those lines

are becoming more blurred, the attempt to define racebased categories also raises serious questions of its own. 

Government action that classifies individuals on the basis 

of race is inherently suspect and carries the danger of

perpetuating the very racial divisions the polity seeks to

transcend. Cf. Ho v. San Francisco Unified School Dist., 

147 F. 3d 854, 858 (CA9 1998) (school district delineating 

13 racial categories for purposes of racial balancing).

Were courts to embark upon this venture not only would it 

be undertaken with no clear legal standards or accepted

sources to guide judicial decision but also it would result 

in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.

Even assuming these initial steps could be taken in a

manner consistent with a sound analytic and judicial

framework, the court would next be required to determine

the policy realms in which certain groups—groups defined

by race—have a political interest. That undertaking,

again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for 

those who support or oppose certain policies to cast the 

debate in terms of racial advantage or disadvantage. Thus 

could racial antagonisms and conflict tend to arise in the 

context of judicial decisions as courts undertook to announce what particular issues of public policy should be

classified as advantageous to some group defined by race. 
Cite as: 572 U. S. ____ (2014) 13 

Opinion of KENNEDY, J. 

This risk is inherent in adopting the Seattle formulation. 

There would be no apparent limiting standards defining 

what public policies should be included in what Seattle 

called policies that “inur[e] primarily to the benefit of the 

minority” and that “minorities . . . consider” to be “ ‘in

their interest.’ ” 458 U. S., at 472, 474. Those who seek to 

represent the interests of particular racial groups could

attempt to advance those aims by demanding an equal

protection ruling that any number of matters be foreclosed

from voter review or participation. In a nation in which 

governmental policies are wide ranging, those who seek to 

limit voter participation might be tempted, were this 

Court to adopt the Seattle formulation, to urge that a 

group they choose to define by race or racial stereotypes 

are advantaged or disadvantaged by any number of laws

or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, 

and monuments are just a few examples of what could 

become a list of subjects that some organizations could 

insist should be beyond the power of voters to decide, or 

beyond the power of a legislature to decide when enacting

limits on the power of local authorities or other governmental entities to address certain subjects. Racial division 

would be validated, not discouraged, were the Seattle 

formulation, and the reasoning of the Court of Appeals in

this case, to remain in force. 

Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that racebased preferences should be adopted. The constitutional 

validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case

is simply that the courts may not disempower the voters

from choosing which path to follow. In the realm of policy

discussions the regular give-and-take of debate ought to be 

a context in which rancor or discord based on race are 

avoided, not invited. And if these factors are to be inter-
 

 

 

14 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

jected, surely it ought not to be at the invitation or insistence of the courts. 

One response to these concerns may be that objections 

to the larger consequences of the Seattle formulation need 

not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, such as racial definitions, still 

apply. And this principal flaw in the ruling of the Court of 

Appeals does remain: Here there was no infliction of a 

specific injury of the kind at issue in Mulkey and Hunter 

and in the history of the Seattle schools. Here there is no 

precedent for extending these cases to restrict the right of

Michigan voters to determine that race-based preferences

granted by Michigan governmental entities should be

ended. 

It should also be noted that the judgment of the Court of

Appeals in this case of necessity calls into question other 

long-settled rulings on similar state policies. The California Supreme Court has held that a California constitutional amendment prohibiting racial preferences in public 

contracting does not violate the rule set down by Seattle. 

Coral Constr., Inc. v. City and County of San Francisco, 50 

Cal. 4th 315, 235 P. 3d 947 (2010). The Court of Appeals

for the Ninth Circuit has held that the same amendment, 

which also barred racial preferences in public education,

does not violate the Equal Protection Clause. Wilson, 122 

F. 3d 692 (1997). If the Court were to affirm the essential 

rationale of the Court of Appeals in the instant case, those

holdings would be invalidated, or at least would be put in

serious question. The Court, by affirming the judgment

now before it, in essence would announce a finding that 

the past 15 years of state public debate on this issue have 

been improper. And were the argument made that Coral 

might still stand because it involved racial preferences in

public contracting while this case concerns racial preferences in university admissions, the implication would be 
 

Cite as: 572 U. S. ____ (2014) 15 

Opinion of KENNEDY, J. 

that the constitutionality of laws forbidding racial preferences depends on the policy interest at stake, the concern

that, as already explained, the voters deem it wise to avoid 

because of its divisive potential. The instant case presents 

the question involved in Coral and Wilson but not involved 

in Mulkey, Hunter, and Seattle. That question is not how

to address or prevent injury caused on account of race but

whether voters may determine whether a policy of racebased preferences should be continued. 

By approving Proposal 2 and thereby adding §26 to their 

State Constitution, the Michigan voters exercised their

privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, 

through the enactment of positive law, to the initiative of 

those who seek a voice in shaping the destiny of their own 

times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan

voters used the initiative system to bypass public officials 

who were deemed not responsive to the concerns of a

majority of the voters with respect to a policy of granting

race-based preferences that raises difficult and delicate

issues. 

The freedom secured by the Constitution consists, in one

of its essential dimensions, of the right of the individual

not to be injured by the unlawful exercise of governmental 

power. The mandate for segregated schools, Brown v. 

Board of Education, 347 U. S. 483 (1954); a wrongful 

invasion of the home, Silverman v. United States, 365 

U. S. 505 (1961); or punishing a protester whose views

offend others, Texas v. Johnson, 491 U. S. 397 (1989); and 

scores of other examples teach that individual liberty has 

constitutional protection, and that liberty’s full extent and 

meaning may remain yet to be discovered and affirmed.

Yet freedom does not stop with individual rights. Our 

constitutional system embraces, too, the right of citizens to

debate so they can learn and decide and then, through the 

political process, act in concert to try to shape the course 
 

16 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

of their own times and the course of a nation that must 

strive always to make freedom ever greater and more 

secure. Here Michigan voters acted in concert and 

statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in 

America that has been a source of tragedy and persisting 

injustice. That history demands that we continue to learn,

to listen, and to remain open to new approaches if we are

to aspire always to a constitutional order in which all

persons are treated with fairness and equal dignity. Were 

the Court to rule that the question addressed by Michigan

voters is too sensitive or complex to be within the grasp of 

the electorate; or that the policies at issue remain too

delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that

the electorate’s power must be limited because the people 

cannot prudently exercise that power even after a full 

debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not

just by one person but by all in common. It is the right to 

speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the

voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite 

in addition to the serious First Amendment implications of 

that position with respect to any particular election, it is 

inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that 

a democracy has the capacity—and the duty—to learn

from its past mistakes; to discover and confront persisting

biases; and by respectful, rationale deliberation to rise 

above those flaws and injustices. That process is impeded,

not advanced, by court decrees based on the proposition 
 

Cite as: 572 U. S. ____ (2014) 17 

Opinion of KENNEDY, J. 

that the public cannot have the requisite repose to discuss

certain issues. It is demeaning to the democratic process 

to presume that the voters are not capable of deciding an

issue of this sensitivity on decent and rational grounds. 

The process of public discourse and political debate should 

not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to 

use racial division and discord to their own political advantage. An informed public can, and must, rise above 

this. The idea of democracy is that it can, and must, 

mature. Freedom embraces the right, indeed the duty, to 

engage in a rational, civic discourse in order to determine 

how best to form a consensus to shape the destiny of the 

Nation and its people. These First Amendment dynamics

would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to

debate and then to determine. 

These precepts are not inconsistent with the wellestablished principle that when hurt or injury is inflicted 

on racial minorities by the encouragement or command of 

laws or other state action, the Constitution requires redress by the courts. Cf. Johnson v. California, 543 U. S. 

499, 511–512 (2005) (“[S]earching judicial review . . . is 

necessary to guard against invidious discrimination”); 

Edmonson v. Leesville Concrete Co., 500 U. S. 614, 619 

(1991) (“Racial discrimination” is “invidious in all contexts”). As already noted, those were the circumstances

that the Court found present in Mulkey, Hunter, and 

Seattle. But those circumstances are not present here. 

For reasons already discussed, Mulkey, Hunter, and 

Seattle are not precedents that stand for the conclusion 

that Michigan’s voters must be disempowered from acting.

Those cases were ones in which 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. What is 

at stake here is not whether injury will be inflicted but 
 

 

18 SCHUETTE v. BAMN 

Opinion of KENNEDY, J. 

whether government can be instructed not to follow a 

course that entails, first, the definition of racial categories 

and, second, the grant of favored status to persons in some

racial categories and not others. The electorate’s instruction to governmental entities not to embark upon the 

course of race-defined and race-based preferences was

adopted, we must assume, because the voters deemed a 

preference system to be unwise, on account of what voters

may deem its latent potential to become itself a source of

the very resentments and hostilities based on race that 

this Nation seeks to put behind it. Whether those adverse 

results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and

reflection, that programs designed to increase diversity—

consistent with the Constitution—are a necessary part of 

progress to transcend the stigma of past racism. 

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. 

There is no authority in the Constitution of the United

States or in this Court’s precedents for the Judiciary to set 

aside Michigan laws that commit this policy determination

to the voters. See Sailors v. Board of Ed. of County of 

Kent, 387 U. S. 105, 109 (1967) (“Save and unless the 

state, county, or municipal government runs afoul of a

federally protected right, it has vast leeway in the management of its internal affairs”). Deliberative debate on 

sensitive issues such as racial preferences all too often 

may shade into rancor. But that does not justify removing

certain court-determined issues from the voters’ reach. 

Democracy does not presume that some subjects are either

too divisive or too profound for public debate. 

The judgment of the Court of Appeals for the Sixth 

Circuit is reversed. 

It is so ordered.

 JUSTICE KAGAN took no part in the consideration or 

decision of this case. 
 

_________________ 

_________________ 

Cite as: 572 U. S. ____ (2014) 1 

ROBERTS, C. J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 12–682 

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY 

BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT
 

[April 22, 2014]

 CHIEF JUSTICE ROBERTS, concurring. 

The 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 57 (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 3, 34–35. 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 46. And it urges that “[r]ace

matters because of the slights, the snickers, the silent

judgments that reinforce that most crippling of thoughts: 
 

 

 

2 SCHUETTE v. BAMN 

ROBERTS, C. J., concurring 

‘I do not belong here.’” Ibid. But it is not “out of touch 

with reality” to conclude that racial preferences may

themselves have the debilitating effect of reinforcing 

precisely that doubt, and—if so—that the preferences do

more harm than good. Post, at 45. To disagree with the 

dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial 

inequality. Post, at 46. People can disagree in good faith 

on this issue, but it similarly does more harm than good to 

question the openness and candor of those on either side of 

the debate.* 

—————— 

* JUSTICE SCALIA and JUSTICE SOTOMAYOR question the relationship

between Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), 

and Parents Involved in Community Schools v. Seattle School Dist. No. 

1, 551 U. S. 701 (2007). See post, at 6, n. 2 (SCALIA, J., concurring in 

judgment); post, at 23, 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 

(majority opinion), 736 (plurality opinion); see ante, at 9. 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 10 (quoting Seattle, supra, at 472, n. 15). 

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 9–10 (emphasis added). 
_________________ 

_________________ 

Cite as: 572 U. S. ____ (2014) 1 

SCALIA, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 12–682 

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY 

BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT
 

[April 22, 2014] 

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 (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. 

Even taking this Court’s sorry line of race-basedadmissions cases as a given, I find the question presented 

only slightly less strange: Does the Equal Protection

Clause forbid a State from banning a practice that the

Clause barely—and only provisionally—permits? React-
 

2 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

ing to those race-based-admissions decisions, some 

States—whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll, see 539 U. S., 

at 343; or simply opposed in principle to the notion of 

“benign” racial discrimination—have gotten out of the 

racial-preferences business altogether. And with our 

express encouragement: “Universities in California, Florida, and Washington State, where racial preferences in 

admissions are prohibited by state law, are currently 

engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and 

should draw on the most promising aspects of these raceneutral alternatives as they develop.” Id., at 342 (emphasis added). Respondents seem to think this admonition 

was merely in jest.1 The experiment, they maintain, is not

only over; it never rightly began. Neither the people of the 

States nor their legislatures ever had the option of directing subordinate public-university officials to cease considering the race of applicants, since that would deny members of those minority groups the option of enacting a 

policy designed to further their interest, thus denying 

them the equal protection of the laws. Never mind that it 

is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest. Cf. id., at 

371–373 (THOMAS, J., concurring in part and dissenting in 

part). And never mind that, were a public university to 

stake its defense of a race-based-admissions policy on the

ground that it was designed to benefit primarily minorities 

(as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional. 

See id., at 322–325. 

But the battleground for this case is not the constitu-

—————— 

1For 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. 
 

Cite as: 572 U. S. ____ (2014) 3 

SCALIA, J., concurring in judgment 

tionality of race-based admissions—at least, not quite. 

Rather, it is the so-called political-process doctrine, derived from this Court’s opinions in Washington v. Seattle 

School Dist. No. 1, 458 U. S. 457 (1982), and Hunter v. 

Erickson, 393 U. S. 385 (1969). I agree with those parts of 

the plurality opinion that repudiate this doctrine. But I do 

not agree with its reinterpretation of Seattle and Hunter, 

which makes them stand in part for the cloudy and doctrinally anomalous proposition that whenever state action 

poses “the serious risk . . . of causing specific injuries on 

account of race,” it denies equal protection. Ante, at 9. I 

would instead reaffirm that the “ordinary principles of our

law [and] of our democratic heritage” require “plaintiffs 

alleging equal protection violations” stemming from facially neutral acts to “prove intent and causation and not 

merely the existence of racial disparity.” Freeman v. Pitts, 

503 U. S. 467, 506 (1992) (SCALIA, J., concurring) (citing 

Washington v. Davis, 426 U. S. 229 (1976)). I would further hold that a law directing state actors to provide equal

protection is (to say the least) facially neutral, and cannot 

violate the Constitution. Section 26 of the Michigan Constitution (formerly Proposal 2) rightly stands. 

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. 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 
 

4 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

be approved by a majority of the electors voting on the

question” at a later referendum. Id., at 387. The question

was whether the charter amendment denied equal protection. Answering yes, the Court explained that “although

the law on its face treats Negro and white, Jew and gentile

in an identical manner, the reality is that the law’s impact

falls on the minority. The majority needs no protection 

against discrimination.” Id., at 391. By placing a “special

burden on racial minorities within the governmental

processes,” the amendment “disadvantage[d]” a racial

minority “by making it more difficult to enact legislation 

in its behalf.” Id., at 391, 393. 

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. 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 courtordered race-based busing. Id., at 462. 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. 

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. It 

was “undoubtedly. . . true” that whites and blacks were 
Cite as: 572 U. S. ____ (2014) 5 

SCALIA, J., concurring in judgment 

“counted among both the supporters and the opponents of

Initiative 350.” Id., at 472. It was “equally clear” that 

both white and black children benefitted from desegregated schools. Ibid. Nonetheless, we concluded that desegregation “inures primarily to the benefit of the minority, and

is designed for that purpose.” Ibid. (emphasis added). In 

any event, it was “enough that minorities may consider 

busing for integration to be ‘legislation that is in their

interest.’” Id., at 474 (quoting Hunter, supra, at 395 

(Harlan, J., concurring)).

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. Although school boards in

Washington retained authority over other studentassignment 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 Seattle were decided, ante, at 10–14, it does not take 
 

 

 

6 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

the next step of overruling those cases. Rather, it reinterprets them beyond recognition. Hunter, the plurality

suggests, was a case in which the challenged act had 

“target[ed] racial minorities.” Ante, at 8. Maybe, but the 

Hunter Court neither found that to be so nor considered it 

relevant, bypassing the question of intent entirely, satisfied that its newly minted political-process theory sufficed

to invalidate the charter amendment. 

 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 17. 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 9.2 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 

—————— 

2The plurality cites evidence from JUSTICE BREYER’s dissent in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 

U. S. 701 (2007), to suggest that the city had been a “partial” cause of

its segregation problem. Ante, at 9. 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. Today’s 

plurality sides with the dissent and repeats its errors. 
 

 

Cite as: 572 U. S. ____ (2014) 7 

SCALIA, J., concurring in judgment 

specific”—and, presumably, constitutional—“injury.” Ante, 

at 14. 

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., 458 U. S., at 

474, 475—that is, segregation not the “product . . . of state 

action but of private choices,” having no “constitutional

implications,” Freeman, 503 U. S., at 495–496. Nor did it 

anywhere state that the current racial imbalance was the 

(judicially remediable) effect of prior de jure segregation. 

Absence of de jure segregation or the effects of de jure 

segregation was a necessary premise of the Seattle opinion. That is what made the issue of busing and pupil 

reassignment a matter of political choice rather than

judicial mandate.3 And precisely because it was a question

for the political branches to decide, the manner—which is

to say, the process—of its resolution implicated the Court’s 

new process theory. The opinion itself says this: “[I]n the

absence of a constitutional violation, the desirability and 

efficacy of school desegregation are matters to be resolved

though the political process. For present purposes, it is

enough [to hold reallocation of that political decision to a 

higher level unconstitutional] that minorities may consider 

busing for integration to be legislation that is in their 

interest.” 458 U. S., at 474 (internal quotation marks 

omitted). 

B 

Patently atextual, unadministrable, and contrary to our 

traditional equal-protection jurisprudence, Hunter and 

—————— 

3Or so the Court assumed. See 458 U. S., at 472, n. 15 (“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”). 
 

 

8 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

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. 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 inur[e] primarily to the benefit of the minority, and

is designed for that purpose.” Id., at 472. It is irrelevant 

that, as in Hunter and Seattle, 458 U. S., at 472, both the 

racial minority and the racial majority benefit from the 

policy in question, and members of both groups favor it. 

Judges should instead focus their guesswork on their own 

juridical sense of what is primarily for the benefit of minorities. Cf. ibid. (regarding as dispositive what “our

cases” suggest is beneficial to minorities). On second 

thought, maybe judges need only ask this question: Is it 

possible “that minorities may consider” the policy in question to be “in their interest”? Id., at 474. If so, you can be

sure that you are dealing with a “racial issue.”4 

—————— 

4The 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 5 

(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 44. 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 (2003), race-based admissions 

policies may not constitutionally be “designed for [the] purpose,” 

Seattle, supra, at 472, 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. So the dissent must 
 

 

 

 

Cite as: 572 U. S. ____ (2014) 9 

SCALIA, J., concurring in judgment 

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 (1990) (O’Connor, J., dissenting); ante, at 11–13. That task is as difficult as it is unappealing. (Does a half-Latino, half–American Indian have

Latino interests, American-Indian interests, both, half of 

both?5) What is worse, the exercise promotes the noxious 

fiction that, knowing only a person’s color or ethnicity, we 

can be sure that he has a predetermined set of policy 

“interests,” thus “reinforc[ing] the perception that members of the same racial group—regardless of their age,

education, economic status, or the community in which

they live—think alike, [and] share the same political

interests.”6 Shaw v. Reno, 509 U. S. 630, 647 (1993).

Whether done by a judge or a school board, such “racial

stereotyping [is] at odds with equal protection mandates.” 

Miller v. Johnson, 515 U. S. 900, 920 (1995).

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.” 

—————— 

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. 5And 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 44. Beyond that, who knows? Five percent? Eighty-five percent? 6The 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 16, 

the dissent suggests throughout, e.g., post, at 30, that that view of 

“reality” is so necessarily shared by members of racial minorities that

they must favor affirmative action. 
 

 

 

10 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 

230 (1995). It is a “basic principle that the Fifth and 

Fourteenth Amendments to the Constitution protect persons, not groups.” Id., at 227; Metro Broadcasting, supra, 

at 636 (KENNEDY, J., dissenting).7 Yet Seattle insists that 

only those political-process alterations that burden racial 

minorities deny equal protection. “The majority,” after all,

“needs no protection against discrimination.” 458 U. S., at 

468 (quoting Hunter, 393 U. S., at 391). In the years since 

Seattle, we have repeatedly rejected “a reading of the 

guarantee of equal protection under which the level of 

scrutiny varies according to the ability of different groups 

to defend their interests in the representative process.” 

Richmond v. J. A. Croson Co., 488 U. S. 469, 495 (1989).

Meant to obliterate rather than endorse the practice of 

racial classifications, the Fourteenth Amendment’s guarantees “obtai[n] with equal force regardless of ‘the race of

those burdened or benefitted.’” Miller, supra, at 904 

(quoting Croson, supra, at 494 (plurality opinion)); 

Adarand, supra, at 223, 227. The Equal Protection Clause

“cannot mean one thing when applied to one individual

and something else when applied to a person of another 

color. If both are not accorded the same protection it is not

equal.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 

289–290 (1978) (opinion of Powell, J.). 

The dissent trots out the old saw, derived from dictum 

in a footnote, that legislation motivated by “‘prejudice 

—————— 

7The dissent contends, post, at 39, 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. 
 

Cite as: 572 U. S. ____ (2014) 11 

SCALIA, J., concurring in judgment 

against discrete and insular minorities’” merits “‘more 

exacting judicial scrutiny.’” Post, at 31 (quoting United 

States v. Carolene Products, 304 U. S. 144, 152–153, n. 4). 

I say derived from that dictum (expressed by the fourJustice 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 (emphasis 

added). The dissent does not argue, of course, that such

“prejudice” produced §26. Nor does it explain why certain

racial minorities in Michigan qualify as “‘insular,’” meaning that “other groups will not form coalitions with them—

and, critically, not because of lack of common interests but 

because of ‘prejudice.’” Strauss, Is Carolene Products 

Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even 

make the case that a group’s “discreteness” and “insularity” are political liabilities rather than political 

strengths8—a serious question that alone demonstrates

the prudence of the Carolene Products dictumizers in 

leaving the “enquir[y]” for another day. As for the question whether “legislation which restricts those political 

processes which can ordinarily be expected to bring about

repeal of undesirable legislation . . . is to be subjected to 

more exacting judicial scrutiny,” the Carolene Products 

Court found it “unnecessary to consider [that] now.” 304 

U. S., at 152, n. 4. If the dissent thinks that worth considering today, it should explain why the election of a university’s governing board is a “political process which can 

—————— 

8Cf., 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’ ”). 
 

12 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

ordinarily be expected to bring about repeal of undesirable

legislation,” but Michigan voters’ ability to amend their 

Constitution is not. It seems to me quite the opposite. 

Amending the Constitution requires the approval of only

“a majority of the electors voting on the question.” Mich. 

Const., Art. XII, §2. By contrast, 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. See 

BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 

(CA6 2012) (Sutton, J., dissenting). So if Michigan voters, 

instead of amending their Constitution, had pursued the

dissent’s preferred path of electing board members promising to “abolish race-sensitive admissions policies,” post, at 

3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. 

But the more important point is that we should not design

our jurisprudence to conform to dictum in a footnote in a

four-Justice opinion. 

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 4–6 (BREYER, J., concurring in judgment) (“This

case . . . does not involve a reordering of the political

process”), with post, at 25–29 (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. 

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 
 

Cite as: 572 U. S. ____ (2014) 13 

SCALIA, J., concurring in judgment 

to place comparative burdens on minorities.” 458 U. S., at 

475, n. 17. This, we said, a State may not do. 

By contrast, in another line of cases, we have emphasized the near-limitless sovereignty of each State to design 

its governing structure as it sees fit. Generally, “a State is

afforded wide leeway when experimenting with the appropriate allocation of state legislative power” and may create

“political subdivisions such as cities and counties . . . ‘as

convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.’” 

Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71 (1978) 

(quoting Hunter v. Pittsburgh, 207 U. S. 161, 178 (1907)). 

Accordingly, States have “absolute discretion” to determine the “number, nature and duration of the powers

conferred upon [municipal] corporations and the territory

over which they shall be exercised.” Holt Civic Club, 

supra, at 71. So it would seem to go without saying that a

State may give certain powers to cities, later assign the 

same powers to counties, and even reclaim them for itself. 

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-
 

14 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

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 compelling concern to the State.” 458 

U. S., at 495 (Powell, J., dissenting). But that is precisely 

what the political-process doctrine contemplates. 

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 4, 41. 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 the

people of Michigan, who, since 1914, have amended their 

Constitution 20 times. Brief for Gary Segura et al. as 

Amici Curiae 12. Even so, the dissent concludes that the 

amendment attacked here worked an illicit “chang[ing] 
 

 

 

 

Cite as: 572 U. S. ____ (2014) 15 

SCALIA, J., concurring in judgment 

[of] the basic rules of the political process in that State” in 

“the middle of the game.” Post, at 2, 4. Why, one might 

ask, is not the amendment provision of the Michigan 

Constitution one (perhaps the most basic one) of the rules 

of the State’s political process? And why does democratic 

invocation of that provision not qualify as working 

through the “existing political process,” post, at 41?9 

II 

I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each endorses a version of

the proposition that a facially neutral law may deny equal

protection solely because it has a disparate racial impact.

Few equal-protection theories have been so squarely and 

soundly rejected. “An unwavering line of cases from this

Court holds that a violation of the Equal Protection Clause 

requires state action motivated by discriminatory intent,” 

Hernandez v. New York, 500 U. S. 352, 372–373 (1991) 

(O’Connor, J., concurring in judgment), and that “official 

action will not be held unconstitutional solely because it 

results in a racially disproportionate impact,” Arlington 

Heights v. Metropolitan Housing Development Corp., 429 

U. S. 252, 264–265 (1977). Indeed, we affirmed this principle the same day we decided Seattle: “[E]ven when a 

neutral law has a disproportionately adverse effect on a

racial minority, the Fourteenth Amendment is violated

only if a discriminatory purpose can be shown.” Crawford 

v. Board of Ed. of Los Angeles, 458 U. S. 527, 537–538 

—————— 

9The 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 21, 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 HunterSeattle. 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. 
 

 

16 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

(1982).

Notwithstanding our dozens of cases confirming the

exception-less 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 9, 17 (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.10 

Respondents argue that we need not bother with the

discriminatory-purpose test, since §26 may be struck more 

straightforwardly as a racial “classification.” Admitting

(as they must) that §26 does not on its face “distribut[e]

burdens or benefits on the basis of individual racial classifications,” Parents Involved in Community Schools v. 

Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007), respondents rely on Seattle’s statement that “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,” then that “singling out” is a racial classification. 458 U. S., at 485, 486, n. 30. But this is just 

the political-process theory bedecked in different doctrinal 

—————— 

10According 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 33. Nonsense. There is no gap. To “manipulate the ground rules,” 

post, at 34, or to “ri[g] the contest,” post, at 35, in order to harm persons

because of their race is to deny equal protection under Washington v. 

Davis. 
 

 

 

Cite as: 572 U. S. ____ (2014) 17 

SCALIA, J., concurring in judgment 

dress. A law that “neither says nor implies that persons 

are to be treated differently on account of their race” is not 

a racial classification. Crawford, supra, at 537. That is 

particularly true of statutes mandating equal treatment.

“[A] law that prohibits the State from classifying individuals by race . . . a fortiori does not classify individuals by 

race.” Coalition for Economic Equity v. Wilson, 122 F. 3d 

692, 702 (CA9 1997) (O’Scannlain, J.).

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. 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 (ED 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 in Seattle, though not 

the charter amendment in Hunter) does not—cannot— 

deny “to any person . . . equal protection of the laws,” U. S.

Const., Amdt. 14, §1, regardless of whatever evidence of 

seemingly foul purposes plaintiffs may cook up in the trial 

court. 

* * * 

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 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would 
 

 

18 SCHUETTE v. BAMN 

SCALIA, J., concurring in judgment 

be shameful for us to stand in their way.11 

—————— 

11And doubly shameful to equate “the majority” behind §26 with “the 

majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., 

dissenting). 
_________________ 

_________________ 

 

 

Cite as: 572 U. S. ____ (2014) 1 

BREYER, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 12–682 

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY 

BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT
 

[April 22, 2014]

 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. 

First, we do not address the amendment insofar as it 

forbids the use of race-conscious admissions programs

designed to remedy past exclusionary racial discrimination or the direct effects of that discrimination. Application of the amendment in that context would present

different questions which may demand different answers.

Rather, we here address the amendment only as it applies 

to, and forbids, programs that, as in Grutter v. Bollinger, 

539 U. S. 306 (2003), rest upon “one justification”: using 
 

2 SCHUETTE v. BAMN 

BREYER, J., concurring in judgment 

“race in the admissions process” solely in order to “obtai[n] 

the educational benefits that flow from a diverse student 

body,” id., at 328 (internal quotation marks omitted).

Second, dissenting in Parents Involved in Community 

Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (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. 

I continue to believe that the Constitution permits,

though it does not require, the use of the kind of raceconscious 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 
Cite as: 572 U. S. ____ (2014) 3 

BREYER, J., concurring in judgment 

ranks 18th of 24 industrialized nations). And low educational achievement continues to be correlated with income 

and race. See, e.g., National Center for Education Statistics, Digest of Education Statistics, Advance Release of 

Selected 2013 Digest Tables (Table 104.20) (White Americans more likely to have completed high school than

African-Americans or Hispanic-Americans), online at 

http://nces.ed.gov/programs/digest (as visited Apr. 15, 

2014, and available in Clerk of Court’s case file); id., Table 

219.75 (Americans in bottom quartile of income most 

likely to drop out of high school); id., Table 302.60 (White

Americans more likely to enroll in college than AfricanAmericans or Hispanic-Americans); id., Table 302.30 

(middle- and high-income Americans more likely to enroll

in college than low-income Americans). 

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. 

Compare Parents Involved, 551 U. S., at 839 (BREYER, J., 

dissenting) (identifying studies showing the benefits of 

racially integrated education), with id., at 761–763 

(THOMAS, J., concurring) (identifying studies suggesting 

racially integrated schools may not confer educational 

benefits). In short, the “Constitution creates a democratic 

political system through which the people themselves 

must together find answers” to disagreements of this kind. 

Id., at 862 (BREYER, J., dissenting). 

Third, cases such as Hunter v. Erickson, 393 U. S. 385 

(1969), and Washington v. Seattle School Dist. No. 1, 458 

U. S. 457 (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, 
 

 

4 SCHUETTE v. BAMN 

BREYER, J., concurring in judgment 

will not always succeed at the polls, they must have the

same opportunity as others to secure through the ballot

box policies that reflect their preferences. In my view, 

however, neither Hunter nor Seattle applies here. And the 

parties do not here suggest that the amendment violates 

the Equal Protection Clause if not under the HunterSeattle doctrine. 

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. 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. 

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 admissionsrelated 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 25–29 

(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 
 

Cite as: 572 U. S. ____ (2014) 5 

BREYER, J., concurring in judgment 

limited times the university boards were advised of the 

content of their race-conscious admissions policies, see 701

F. 3d 466, 481–482 (CA6 2012), to my knowledge no board 

voted to accept or reject any of those policies. Thus, unelected faculty members and administrators, not voters or

their elected representatives, adopted the race-conscious 

admissions programs affected by Michigan’s constitutional

amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in

the hands of the voters. 

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 they had won. 

The majority’s subsequent reordering of the political

process repealed the minority’s successes and made it 

more difficult for the minority to succeed in the future.

The majority thereby diminished the minority’s ability to 

participate meaningfully in the electoral process. But one 

cannot as easily characterize the movement of the decisionmaking mechanism at issue here—from an administrative process to an electoral process—as diminishing the 

minority’s ability to participate meaningfully in the political process. There is no prior electoral process in which 

the minority participated. 

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, ___ (2010) (BREYER, 

J., dissenting). Administrative bodies modify programs in

detail, and decisionmaking authority within the administrative process frequently moves around—due to amend-
 

 

6 SCHUETTE v. BAMN 

BREYER, J., concurring in judgment 

ments 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 experimentation, 

interfering with efforts to see when and how raceconscious policies work.

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. 
_________________ 

_________________ 

 

Cite as: 572 U. S. ___ (2014) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 12–682 

BILL SCHUETTE, ATTORNEY GENERAL OF MICHIGAN, PETITIONER v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY 

BY ANY MEANS NECESSARY (BAMN), ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT
 

[April 22, 2014] 

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 selfgovernment. That right is the bedrock of our democracy,

for it preserves all other rights.

Yet to know the history of our Nation is to understand

its long and lamentable record of stymieing the right of

racial minorities to participate in the political process. At 

first, the majority acted with an open, invidious purpose. 

Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the 

political process altogether by withholding the right to 
 

 

 

2 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

vote. This Court intervened to preserve that right. The 

majority tried again, replacing outright bans on voting

with literacy tests, good character requirements, poll 

taxes, and gerrymandering. The Court was not fooled; it 

invalidated those measures, too. The majority persisted.

This time, although it allowed the minority access to the

political process, the majority changed the ground rules of 

the process so as to make it more difficult for the minority,

and the minority alone, to obtain policies designed to

foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the 

Court reaffirmed the right of minority members of our

society to participate meaningfully and equally in the 

political process.

This case involves this last chapter of discrimination: A

majority of the Michigan electorate changed the basic

rules of the political process in that State in a manner that

uniquely disadvantaged racial minorities.1 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 policies2—were in the hands of each institution’s governing 

—————— 

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 18, 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. 2Although 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 unquali-
 

 

 

 

Cite as: 572 U. S. ___ (2014) 3 

SOTOMAYOR, J., dissenting 

board. The members of those boards are nominated by 

political parties and elected by the citizenry in statewide 

elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in 

Michigan had succeeded in persuading the elected board 

representatives to adopt admissions policies that took into

account the benefits of racial diversity. And this Court 

twice blessed such efforts—first in Regents of Univ. of Cal. 

v. Bakke, 438 U. S. 265 (1978), and again in Grutter v. 

Bollinger, 539 U. S. 306 (2003), a case that itself concerned 

a Michigan admissions policy. 

In the wake of Grutter, some voters in Michigan set out

to eliminate the use of race-sensitive admissions policies.

Those voters were of course free to pursue this end in any

number of ways. For example, they could have persuaded 

existing board members to change their minds through 

individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have

mobilized efforts to vote uncooperative board members out 

of office, replacing them with members who would share 

their desire to abolish race-sensitive admissions policies.

When this Court holds that the Constitution permits a

particular policy, nothing prevents a majority of a State’s 

—————— 

fied 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 (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, and must not maintain a quota, ibid. And even this limited 

sensitivity to race must be limited in time, id., at 341–343, and must be 

employed only after “serious, good faith consideration of workable raceneutral alternatives,” id., at 339. 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. 
 

4 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

voters from choosing not to adopt that policy. Our system

of government encourages—and indeed, depends on—that 

type of democratic action. 

But instead, the majority of Michigan voters changed 

the rules in the middle of the game, reconfiguring the 

existing political process in Michigan in a manner that 

burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art.

I, §26, which provides in relevant part that Michigan’s 

public universities “shall not discriminate against, or 

grant preferential treatment to, any individual or group on 

the basis of race, sex, color, ethnicity, or national origin in

the operation of public employment, public education, or

public contracting.” 

As a result of §26, there are now two very different

processes through which a Michigan citizen is permitted to

influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a 

University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s

legacy status by meeting individually with members of the

Board of Regents to convince them of her views, by joining 

with other legacy parents to lobby the Board, or by voting

for and supporting Board candidates who share her position. The same options are available to a citizen who

wants the Board to adopt admissions policies that consider 

athleticism, geography, area of study, and so on. The one 

and only policy a Michigan citizen may not seek through 

this long-established process is a race-sensitive admissions 

policy that considers race in an individualized manner

when it is clear that race-neutral alternatives are not 

adequate to achieve diversity. For that policy alone, the 

citizens of Michigan must undertake the daunting task of 

amending the State Constitution.

Our precedents do not permit political restructurings 
Cite as: 572 U. S. ___ (2014) 5 

SOTOMAYOR, J., dissenting 

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 

(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 

(1969). In those cases—Hunter and Seattle—the Court 

recognized what is now known as the “political-process 

doctrine”: When the majority reconfigures the political 

process in a manner that burdens only a racial minority,

that alteration triggers strict judicial scrutiny.

 Today, disregarding stare decisis, a majority of the

Court effectively discards those precedents. The plurality

does so, it tells us, because the freedom actually secured 

by the Constitution is the freedom of self-government—

because the majority of Michigan citizens “exercised their 

privilege to enact laws as a basic exercise of their democratic power.” Ante, at 15. It would be “demeaning to the 

democratic process,” the plurality concludes, to disturb

that decision in any way. Ante, at 17. This logic embraces

majority rule without an important constitutional limit. 

The plurality’s decision fundamentally misunderstands

the nature of the injustice worked by §26. This case is not, 

as the plurality imagines, about “who may resolve” the 

debate over the use of race in higher education admissions. Ante, at 18. I agree wholeheartedly that nothing 

vests the resolution of that debate exclusively in the courts 

or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over the 

use of race-sensitive admissions policies may be resolved, 
 

6 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

contra, ibid.—that is, it must be resolved in constitutionally permissible ways. While our Constitution does not 

guarantee minority groups victory in the political process, 

it does guarantee them meaningful and equal access to

that process. It guarantees that the majority may not win

by stacking the political process against minority groups

permanently, forcing the minority alone to surmount

unique obstacles in pursuit of its goals—here, educational 

diversity that cannot reasonably be accomplished through

race-neutral measures. Today, by permitting a majority of 

the voters in Michigan to do what our Constitution forbids,

the Court ends the debate over race-sensitive admissions 

policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents. 

Like the plurality, I have faith that our citizenry will

continue to learn from this Nation’s regrettable history; 

that it will strive to move beyond those injustices towards 

a future of equality. And I, too, believe in the importance 

of public discourse on matters of public policy. But I part

ways with the plurality when it suggests that judicial 

intervention in this case “impede[s]” rather than “advance[s]” the democratic process and the ultimate hope of

equality. Ante, at 16. 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. 

I 

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, and so it is one we must address with candor. 

Because the political-process doctrine is best understood 

against the backdrop of this history, I will briefly trace its 
 

 

 

Cite as: 572 U. S. ___ (2014) 7 

SOTOMAYOR, J., dissenting 

course. 

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 (1927), Texas responded by changing the rules.

It enacted a new statute that gave political parties themselves the right to determine who could participate in

their primaries. Predictably, the Democratic Party specified that only white Democrats could participate in its 

primaries. Nixon v. Condon, 286 U. S. 73, 81–82 (1932).

The Court invalidated that scheme, too. Id., at 89; see 

also Smith v. Allwright, 321 U. S. 649 (1944); Terry v. 

Adams, 345 U. S. 461 (1953).

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 (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 (1939). The Court 

struck down that statute as well. Id., at 275. 

Racial minorities were occasionally able to surmount the

hurdles to their political participation. Indeed, in some 
 

8 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

States, minority citizens were even able to win elective

office. But just as many States responded to the Fifteenth

Amendment by subverting minorities’ access to the polls, 

many States responded to the prospect of elected minority

officials by undermining the ability of minorities to win

and hold elective office. Some States blatantly removed 

black officials from local offices. See, e.g., H. Rabinowitz, 

Race Relations in the Urban South, 1865–1890, pp. 267, 

269–270 (1978) (describing events in Tennessee and Virginia). Others changed the processes by which local officials were elected. See, e.g., Extension of the Voting

Rights Act, Hearings before the Subcommittee on Civil 

and Constitutional Rights of the House Committee on the 

Judiciary, 97th Cong., 1st Sess., pt. 1, pp. 2016–2017

(1981) (hereinafter 1981 Hearings) (statement of Professor 

J. Morgan Kousser) (after a black judge refused to resign 

in Alabama, the legislature abolished the court on which

he served and replaced it with one whose judges were

appointed by the Governor); Rabinowitz, supra, at 269– 

270 (the North Carolina Legislature divested voters of

the right to elect justices of the peace and county commissioners, then arrogated to itself the authority to select

justices of the peace and gave them the power to select 

commissioners). 

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 (1960). The Court 

intervened, finding it “inconceivable that guaranties embedded in the Constitution” could be “manipulated out of

existence” by being “cloaked in the garb of [political] rea-
Cite as: 572 U. S. ___ (2014) 9 

SOTOMAYOR, J., dissenting 

lignment.” Id., at 345 (internal quotation marks omitted).

This Court’s landmark ruling in Brown v. Board of 

Education, 347 U. S. 483 (1954), triggered a new era of

political restructuring, this time in the context of education. In Virginia, the General Assembly transferred control of student assignment from local school districts to a

State Pupil Placement Board. See B. Muse, Virginia’s

Massive Resistance 34, 74 (1961). And when the legislature learned that the Arlington County school board had 

prepared a desegregation plan, the General Assembly 

“swiftly retaliated” by stripping the county of its right to

elect its school board by popular vote and instead making

the board an appointed body. Id., at 24; see also B. Smith, 

They Closed Their Schools 142–143 (1965). 

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 (ED 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 (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 any public school in the State, and stripping local 

school districts of their decisionmaking authority so long 
 

10 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

as the Governor determined that local officials could not 

maintain “‘a general, suitable, and efficient educational 

system.’” Aaron v. Cooper, 261 F. 2d 97, 99 (CA8 1958) 

(per curiam) (quoting Arkansas statute). The thenGovernor immediately closed all of Little Rock’s high

schools. Id., at 99–100; see also S. Breyer, Making Our 

Democracy Work 49–67 (2010) (discussing the events in

Little Rock).

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). 

II 

It was in this historical context that the Court intervened in Hunter v. Erickson, 393 U. S. 385 (1969), and 

Washington v. Seattle School Dist. No. 1, 458 U. S. 457 

(1982). Together, Hunter and Seattle recognized a fundamental strand of this Court’s equal protection jurisprudence: the political-process doctrine. To understand that 

doctrine fully, it is necessary to set forth in detail precisely 
 

Cite as: 572 U. S. ___ (2014) 11 

SOTOMAYOR, J., dissenting 

what the Court had before it, and precisely what it said.

For to understand Hunter and Seattle is to understand 

why those cases straightforwardly resolve this one. 

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 (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 (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. The Court characterized the amendment as “no more 
 

 

 

 

12 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

permissible” than denying racial minorities the right to

vote on an equal basis with the majority. Id., at 391. For 

a “State may no more disadvantage any particular group 

by making it more difficult to enact legislation in its behalf 

than it may dilute any person’s vote or give any group a

smaller representation than another of comparable size.” 

Id., at 392–393. The vehicle for the change—a popular

referendum—did not move the Court: “The sovereignty of 

the people,” it explained, “is itself subject to . . . constitutional limitations.” Id., at 392. 

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 (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. Among other measures, it enacted a 

desegregation plan that made extensive use of busing and 

mandatory assignments. Id., at 461. The district was 

under no obligation to adopt the plan; Brown charged 

school boards with a duty to integrate schools that were 

segregated because of de jure racial discrimination, but 

there had been no finding that the de facto segregation in 

Seattle’s schools was the product of de jure discrimination. 

458 U. S., at 472, n. 15. Several residents who opposed 

the desegregation efforts formed a committee and sued to 

enjoin implementation of the plan. Id., at 461. When 

these efforts failed, the committee sought to change the 
 

 

 

Cite as: 572 U. S. ___ (2014) 13 

SOTOMAYOR, J., dissenting 

rules of the political process. It drafted a statewide initiative “designed to terminate the use of mandatory busing

for purposes of racial integration.” Id., at 462. A majority of the State’s citizens approved the initiative. Id., at 

463–464. 

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. “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. 

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. 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 (quoting 

Hunter, 393 U. S., at 395) (Harlan, J. concurring)). 
 

 

 

 

14 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

The Court next concluded that “the practical effect of 

[the initiative was] to work a reallocation of power of the 

kind condemned in Hunter.” Seattle, 458 U. S., at 474. It 

explained: “Those favoring the elimination of de facto 

school segregation now must seek relief from the state 

legislature, or from the statewide electorate. Yet authority

over all other student assignment decisions, as well as 

over most other areas of educational policy, remains vested

in the local school board.” Ibid. Thus, the initiative required those in favor of racial integration in public schools 

to “surmount a considerably higher hurdle than persons

seeking comparable legislative action” in different contexts. Ibid. 

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 (quoting 

Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 

539 (1982)). But because the initiative burdened future 

attempts to integrate by lodging the decisionmaking authority at a “new and remote level of government,” it was

more than a “mere repeal”; it was an unconstitutionally

discriminatory change to the political process.3 Seattle, 

—————— 

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 

(1969), by clarifying that the charter amendment in Hunter was “something more than a mere repeal” because it altered the framework of the 
 

Cite as: 572 U. S. ___ (2014) 15 

SOTOMAYOR, J., dissenting 

458 U. S., at 483–484. 

B 

Hunter and Seattle vindicated a principle that is as

elementary to our equal protection jurisprudence as it is

essential: The majority may not suppress the minority’s

right to participate on equal terms in the political process. 

Under this doctrine, governmental action deprives minority groups of equal protection when it (1) has a racial focus,

targeting a policy or program that “inures primarily to the 

benefit of the minority,” Seattle, 458 U. S., at 472; and 

(2) alters the political process in a manner that uniquely 

burdens racial minorities’ ability to achieve their goals 

through that process. A faithful application of the doctrine resoundingly resolves this case in respondents’ favor. 

1 

Section 26 has a “racial focus.” Seattle, 458 U. S., at 

474. 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, as they are designed to increase minorities’ 

access to institutions of higher education.4 

—————— 

political process. 458 U. S., at 540. 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. 4 JUSTICE SCALIA accuses me of crafting my own version (or versions) 

of the racial-focus prong. See ante, at 8–9, 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. 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 8, n. 4 
 

16 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

Petitioner argues that race-sensitive admissions policies

cannot “inur[e] primarily to the benefit of the minority,” 

ibid., as the Court has upheld such policies only insofar as

they further “the educational benefits that flow from a

diverse student body,” Grutter, 539 U. S., at 343. But 

there is no conflict between this Court’s pronouncement in 

Grutter and the common-sense reality that race-sensitive 

admissions policies benefit minorities. Rather, racesensitive admissions policies further a compelling state 

interest in achieving a diverse student body precisely

because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can 

both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and 

inure to the benefit of racial minorities. There is nothing

mutually exclusive about the two. Cf. Seattle, 458 U. S., at 

472 (concluding that the desegregation plan had a racial 

focus even though “white as well as Negro children benefit from exposure to ‘ethnic and racial diversity in the 

classroom’”). 

It is worth emphasizing, moreover, that §26 is relevant 

—————— 

(quoting supra, at 5)—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 politicalprocess 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 5 (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 8, n. 4—is the one 

articulated by the Seattle Court and, as I have explained, see supra, at 

15 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 8–9, n. 4—is not a test I advance at all. 
 

Cite as: 572 U. S. ___ (2014) 17 

SOTOMAYOR, J., dissenting 

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 Gruttercompliant 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. 

The policies banned by §26 meet all these requirements

and thus already constitute the least restrictive ways to

advance Michigan’s compelling interest in diversity in 

higher education. 

2 

Section 26 restructures the political process in Michigan

in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that

consider racial diversity. 

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). 
 

 

18 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 Mich. Comp. Laws Ann. 

§§168.282, 168.286 (West 2008); Mich. Const., Art. VIII, 

§5. Prior to §26, board candidates frequently included 

their views on race-sensitive admissions in their campaigns. For example, in 2005, one candidate pledged to 

“work to end so-called ‘Affirmative-Action,’ a racist, degrading system.” See League of Women Voters, 2005 

General Election Voter Guide, online at http://

www.lwvka.org/guide04/regents/html (all Internet materials as visited Apr. 18, 2014, and available in Clerk of 

Court’s case file); see also George, U-M Regents Race Tests

Policy, Detroit Free Press, Oct. 26, 2000, p. 2B (noting that 

one candidate “opposes affirmative action admissions

policies” because they “‘basically sa[y] minority students 

are not qualified’”). 

Before the enactment of §26, Michigan’s political structure permitted both supporters and opponents of racesensitive 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.5 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 

—————— 

5By 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 (KENNEDY, J., 

dissenting). 
 

Cite as: 572 U. S. ___ (2014) 19 

SOTOMAYOR, J., dissenting 

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 obtain substantially

more than the actual required number of signatures,

typically by a 25% to 50% margin.’” Id., at 10 (quoting

Tolbert, Lowenstein, & Donovan, Election Law and Rules 

for Using Initiatives, in Citizens as Legislators: Direct 

Democracy in the United States 27, 37 (S. Bowler, T. 

Donovan, & C. Tolbert eds., 1998)).

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, in The Oxford Handbook of 
 

20 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

American Political Parties and Interest Groups 468, 471 

(L. Maisel & J. Berry eds., 2010). In 2008, for instance, 

over $800 million was spent nationally on state-level

initiative and referendum campaigns, nearly $300 million

more than was spent in the 2006 cycle. Donovan 98. “In 

several states, more money [is] spent on ballot initiative

campaigns than for all other races for political office combined.” Ibid. Indeed, the amount spent on state-level 

initiative and referendum campaigns in 2008 eclipsed the

$740.6 million spent by President Obama in his 2008

presidential campaign, Salant, Spending Doubled as 

Obama Led Billion-Dollar Campaign, Bloomberg News, 

Dec. 27, 2008, online at http://www.bloomberg.com/apps/ 

news?pid=newsarchive&sid=anLDS9WWPQW8. 

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.”6 Segura Brief 13. 

—————— 

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 11–12 (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 18–20. 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 
 

Cite as: 572 U. S. ___ (2014) 21 

SOTOMAYOR, J., dissenting 

This is the onerous task that §26 forces a Michigan

citizen to complete in order to change the admissions 

policies of Michigan’s public colleges and universities with 

respect to racial sensitivity. While substantially less 

grueling paths remain open to those advocating for any

other admissions policies, a constitutional amendment is 

the only avenue by which race-sensitive admissions policies may be obtained. The effect of §26 is that a white 

graduate of a public Michigan university who wishes to

pass his historical privilege on to his children may freely 

lobby the board of that university in favor of an expanded 

legacy admissions policy, whereas a black Michigander 

who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that 

might give his children a chance that he never had and 

that they might never have absent that policy.

Such reordering of the political process contravenes 

Hunter and Seattle.7 See Seattle, 458 U. S., at 467 (the

Equal Protection Clause prohibits “‘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 

—————— 

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. 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 13–14 (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 14. 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. 
 

 

 

22 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

achieve beneficial legislation” (citation omitted)). Where, 

as here, the majority alters the political process to the 

detriment of a racial minority, the governmental action is

subject to strict scrutiny. See id., at 485, n. 28. Michigan

does not assert that §26 satisfies a compelling state interest. That should settle the matter. 

C 

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 8. And the plurality 

recasts Seattle “as a case in which the state action in 

question . . . had the serious risk, if not purpose, of causing 

specific injuries on account of race.” Ante, at 8–9. According to the plurality, the Hunter and Seattle Courts were 

not concerned with efforts to reconfigure the political

process to the detriment of racial minorities; rather, those 

cases invalidated governmental actions merely because 

they reflected an invidious purpose to discriminate. This 

is not a tenable reading of those cases.

The plurality identifies “invidious discrimination” as the

“necessary result” of the restructuring in Hunter. Ante, at 

8. 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.8 

—————— 

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 
 

 

Cite as: 572 U. S. ___ (2014) 23 

SOTOMAYOR, J., dissenting 

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 (striking down the Akron charter amendment 

because it “places a special burden on racial minorities

within the governmental process”). 

Similarly, the plurality disregards what Seattle actually

says and instead opines that “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 17. Here, the plurality derives its conclusion not from 

Seattle itself, but from evidence unearthed more than a 

quarter-century later in Parents Involved in Community 

Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007): 

“Although there had been no judicial finding of de jure

segregation with respect to Seattle’s school district, it

appears as though school desegregation in the district in 

the 1940’s and 1950’s may have been the partial result of 

school board policies that ‘permitted white students to

transfer out of black schools while restricting the transfer

of black students into white schools.’”9 Ante, at 9 (quoting 

Parents Involved, 551 U. S., at 807–808 (BREYER, J., dissenting) (emphasis added). It follows, according to the 

—————— 

the political-process doctrine; it operates irrespective of discriminatory

intent, for it protects a process-based right. 9The 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 9–10. 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. 
 

24 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

plurality, that Seattle’s desegregation plan was constitutionally required, so that the initiative halting the plan

was an instance of invidious discrimination aimed at 

inflicting a racial injury.

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 (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. And it unmistakably rested its 

decision on Hunter, holding Seattle’s initiative invalid 

because it “use[d] the racial nature of an issue to define 

the governmental decisionmaking structure, and thus

impose[d] substantial and unique burdens on racial minorities.” 458 U. S., at 470. 

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 8 (describing the injury in Hunter 

as “a demonstrated injury on the basis of race”); ante, at 

8–9 (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 
 

Cite as: 572 U. S. ___ (2014) 25 

SOTOMAYOR, J., dissenting 

this point, and this point only, I agree with JUSTICE 

SCALIA that the plurality has rewritten those precedents

beyond recognition. See ante, at 5–7 (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 5 

(opinion concurring in judgment). He bases this conclusion on the premise that Michigan’s elected boards “delegated admissions-related decisionmaking authority to

unelected university faculty members and administrators.” Ibid. But this premise is simply incorrect. 

For one thing, it is undeniable that prior to §26, board 

candidates often pledged to end or carry on the use of racesensitive admissions policies at Michigan’s public universities. See supra, at 18. 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 
 

26 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 record, and on empirical data

reflecting the characteristics of students who have successfully graduated from [the university] within the four 

years prior to the year in which the student applies”);

§§2.34.12.080, 2.34.12.090 (setting the requisite grade 

point average for graduate applicants).

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 
 

Cite as: 572 U. S. ___ (2014) 27 

SOTOMAYOR, J., dissenting 

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 

responsibility for admissions to the Associate Vice Provost, 

Executive Director of Undergraduate Admissions, and

Directors of Admissions. Bylaws §8.01, online at http://

www.regents.umich.edu/bylaws. And the Board of Trustees of Michigan State University relies on the President

to make recommendations regarding admissions policies.

Bylaws, Art. 8, online at http://www.trustees.msu.edu/

bylaws. But the bylaws of the Board of Regents and the 

Board of Trustees “make clear that all university operations remain subject to their control.” Brief for Respondents Regents of the University of Michigan, the Board of 

Trustees of Michigan State University et al. 13–14.

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 (2003), and Grutter, 539 U. S., 

at 306, 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 
 

28 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 of the President[,] . . . determine and establish the qualifications of students for admissions at any level.” Bylaws, Art. 8. The boards may 

also permanently remove certain admissions decisions 

from university officials.10 This authority is not merely 

theoretical. Between 2008 and 2012, the University of

Michigan’s Board of Regents “revised more than two dozen

of its bylaws, two of which fall within Chapter VIII, the 

section regulating admissions practices.” App. to Pet. for 

Cert. 30a. 

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,” 

—————— 

10Under 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. 
Cite as: 572 U. S. ___ (2014) 29 

SOTOMAYOR, J., dissenting 

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 Trustees 

of Michigan State University et al. 14.

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 racesensitive 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 placed it instead at a higher level of the 

political process in Michigan. See supra, at 17–22. This 

case is no different from Hunter and Seattle in that respect. Just as in Hunter and Seattle, minorities in Michigan “participated in the political process and won.” Ante, 

at 5 (BREYER, J., concurring in judgment). And just as in 

Hunter and Seattle, “the majority’s subsequent reordering

of the political process repealed the minority’s successes 

and made it more difficult for the minority to succeed in 

the future,” thereby “diminish[ing] the minority’s ability to 

participate meaningfully in the electoral process.” Ibid. 

There is therefore no need to consider “extend[ing] the 

holding of Hunter and Seattle to reach situations in which 

decisionmaking authority is moved from an administrative 

body to a political one,” ibid. Such a scenario is not before us. 

III 

The political-process doctrine not only resolves this case

as a matter of stare decisis; it is correct as a matter of first 
 

30 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 against minority groups. But equal protection of the laws means more than that; it also secures the 

right of all citizens to participate meaningfully and equally

in the process through which laws are created. 

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 (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. Id., at 103 (describing the importance of the judiciary in policing the “channels of political change”). It is the means by which citizens may both 
 

 

Cite as: 572 U. S. ___ (2014) 31 

SOTOMAYOR, J., dissenting 

obtain desirable legislation and repeal undesirable legislation. Of course, we do not expect minority members of our

society to obtain every single result they seek through the

political process—not, at least, when their views conflict 

with those of the majority. The minority plainly does not

have a right to prevail over majority groups in any given 

political contest. But the minority does have a right to

play by the same rules as the majority. It is this right

that Hunter and Seattle so boldly vindicated. 

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 (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 constitutionality, the same may not be

true of legislation that offends fundamental rights or 

targets minority groups. Citing cases involving restrictions on the right to vote, restraints on the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly, the Court 

recognized that “legislation which restricts those political

processes which can ordinarily be expected to bring about

repeal of undesirable legislation” could be worthy of “more

exacting judicial scrutiny under the general prohibitions of

the Fourteenth Amendment than are most other types of 

legislation.” Id., at 152, n. 4; see also Ely, supra, at 76 

(explaining that “[p]aragraph two [of Carolene Products 

footnote 4] suggests that it is an appropriate function of 

the Court to keep the machinery of democratic government running as it should, to make sure the channels of 

political participation and communication are kept open”). 

The Court also noted that “prejudice against discrete and 

insular minorities may be a special condition, which tends

seriously to curtail the operation of those political pro- 
 

32 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

cesses ordinarily to be relied upon to protect minorities, 

and which may call for a correspondingly more searching judicial inquiry.” Carolene Products, 304 U. S., at 153, 

n. 4, see also Ely, supra, at 76 (explaining that 

“[p]aragraph three [of Carolene Products footnote 4] suggests that the Court should also concern itself with what 

majorities do to minorities, particularly mentioning laws

‘directed at’ religious, national and racial minorities and 

those infected by prejudice against them”). 

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 (“[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 those political processes ordinarily to be relied upon to protect minorities’” (quoting 

Carolene Products, 304 U. S., at 153, n. 4)). These values 

are central tenets of our equal protection jurisprudence.

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 (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 the minority to exercise the right to vote. This, 

too, is widely accepted. After all, the Court has invalidated grandfather clauses, good character requirements, poll 

taxes, and gerrymandering provisions.11 The third fea-

—————— 

11Attempts 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. ___, ___ (2013) (slip op., at 15–17) 

(GINSBURG, J., dissenting) (describing recent examples of discriminatory

changes to state voting laws, including a 1995 dual voter registration 
Cite as: 572 U. S. ___ (2014) 33 

SOTOMAYOR, J., dissenting 

ture, the one the plurality dismantles today, is that a

majority may not reconfigure the existing political process 

in a manner that creates a two-tiered system of political 

change, subjecting laws designed to protect or benefit 

discrete and insular minorities to a more burdensome 

political process than all other laws. This is the politicalprocess doctrine of Hunter and Seattle. 

My colleagues would stop at the second. The plurality

embraces the freedom of “self-government” without limits. 

See ante, at 13. And JUSTICE SCALIA values a “nearlimitless” notion of state sovereignty. See ante, at 13 

(opinion concurring in judgment). The wrong sought to be

corrected by the political-process doctrine, they say, is not

one that should concern us and is in any event beyond the 

reach of the Fourteenth Amendment. As they see it, the

Court’s role in protecting the political process ends once

we have removed certain barriers to the minority’s participation in that process. Then, they say, we must sit back

and let the majority rule without the key constitutional 

limit recognized in Hunter and Seattle. 

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 

—————— 

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. 
 

 

34 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

attempts to block access to the ballot,” were “‘secondgeneration barriers’” to minority voting, Shelby County v. 

Holder, 570 U. S. ___, ___ (2013) (GINSBURG, J., dissenting) (slip op., at 5), 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].’”12 458 U. S., at 486. 

To accept the first two features of the right to meaningful participation in the political process, while renouncing

the third, paves the way for the majority to do what it has 

done time and again throughout our Nation’s history:

afford the minority the opportunity to participate, yet

manipulate the ground rules so as to ensure the minority’s 

defeat. This is entirely at odds with our idea of equality 

under the law. 

To reiterate, none of this is to say that the politicalprocess doctrine prohibits the exercise of democratic selfgovernment. 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 

—————— 

12Preserving 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 14–15 (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 (quoting Brown v. Board of Education, 347 

U. S. 483, 493 (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. 
 

Cite as: 572 U. S. ___ (2014) 35 

SOTOMAYOR, J., dissenting 

Michiganders who were unhappy with Grutter were free to 

pursue an end to race-sensitive admissions policies in

their State. See ante, at 16–17. 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 politicalprocess 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 (CA6 2012). 

B 

The political-process doctrine also follows from the rest

of our equal protection jurisprudence—in particular, our 

reapportionment and vote dilution cases. In those cases, 

the Court described the right to vote as “‘the essence of a 

democratic society.’” Shaw, 509 U. S., at 639. It rejected

States’ use of ostensibly race-neutral measures to prevent 

minorities from exercising their political rights. See id., at 

639–640. And it invalidated practices such as at-large

electoral systems that reduce or nullify a minority group’s 

ability to vote as a cohesive unit, when those practices

were adopted with a discriminatory purpose. Id., at 641. 

These cases, like the political-process doctrine, all sought 

to preserve the political rights of the minority. 
 

 

 

36 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

Two more recent cases involving discriminatory restructurings of the political process are also worthy of mention: 

Romer v. Evans, 517 U. S. 620 (1996), and League of United 

Latin American Citizens v. Perry, 548 U. S. 399 (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 of

similar ordinances in the future without another amendment to the State Constitution. 517 U. S., at 623–624. 

Although the Court did not apply the political-process 

doctrine in Romer,13 the case resonates with the principles

undergirding the political-process doctrine. The Court 

rejected an attempt by the majority to transfer decisionmaking authority from localities (where the targeted

minority group could influence the process) to state government (where it had less ability to participate effectively). See id., at 632 (describing this type of political

restructuring as a “disability” on the minority group). 

Rather than being able to appeal to municipalities for 

policy changes, the Court commented, the minority was

forced to “enlis[t] the citizenry of Colorado to amend the

State Constitution,” id., at 631—just as in this case. 

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 (plurality opinion). In striking 

—————— 

13The 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. 
Cite as: 572 U. S. ___ (2014) 37 

SOTOMAYOR, J., dissenting 

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, 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. Against this backdrop, 

the Court found that just as “Latino voters were poised to 

elect their candidate of choice,” id., at 438, the State’s 

enactment “took away [their] opportunity because [they] 

were about to exercise it,” id., at 440. 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.

 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 prevented Latinos in Texas from attaining a benefit they had fought for and were poised to enjoy, §26

prevents racial minorities in Michigan from enjoying a

last-resort benefit that they, too, had fought for through

the existing political processes. 

IV 

My colleagues claim that the political-process doctrine is 

unadministrable and contrary to our more recent equal 

protection precedents. See ante, at 11–15 (plurality opinion); ante, at 7–17 (SCALIA, J., concurring in judgment). It 

is only by not acknowledging certain strands of our jurisprudence that they can reach such a conclusion. 
 

 

 

38 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

A 

Start with the claim that Hunter and Seattle are no 

longer viable because of the cases that have come after 

them. I note that in the view of many, it is those precedents that have departed from the mandate of the Equal

Protection Clause in the first place, by applying strict

scrutiny to actions designed to benefit rather than burden

the minority. See Gratz, 539 U. S., at 301 (GINSBURG, J., 

dissenting) (“[A]s I see it, government decisionmakers may 

properly distinguish between policies of exclusion and 

inclusion. Actions designed to burden groups long denied 

full citizenship stature are not sensibly ranked with 

measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated” 

(citation omitted)); id., at 282 (BREYER, J., concurring in

judgment) (“I agree . . . that, in implementing the Constitution’s equality instruction, government decisionmakers 

may properly distinguish between policies of inclusion and 

exclusion, for the former are more likely to prove consistent with the basic constitutional obligation that the 

law respect each individual equally” (citation omitted)); 

Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243 

(1995) (Stevens, J., dissenting) (“There is no moral or 

constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to 

eradicate racial subordination. Invidious discrimination is 

an engine of oppression, subjugating a disfavored group to 

enhance or maintain the power of the majority. Remedial 

race-based preferences reflect the opposite impulse: a 

desire to foster equality in society”); Wygant v. Jackson 

Bd. of Ed., 476 U. S. 267, 301–302 (1986) (Marshall, J., 

dissenting) (when dealing with an action to eliminate 

“pernicious vestiges of past discrimination,” a “less exacting standard of review is appropriate”); Fullilove v. Klutznick, 448 U. S. 448, 518–519 (1980) (Marshall, J., concurring in judgment) (race-based governmental action 
Cite as: 572 U. S. ___ (2014) 39 

SOTOMAYOR, J., dissenting 

designed to “remed[y] the continuing effects of past racial 

discrimination . . . should not be subjected to conventional 

‘strict scrutiny’”); Bakke, 438 U. S., at 359 (Brennan, 

White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part) (“racial classifications 

designed to further remedial purposes” should be subjected 

only to intermediate scrutiny).

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 

9 (opinion concurring in judgment) (quoting Adarand, 515 

U. S., at 230). Equal protection, he says, protects “‘persons, not groups.’” Ante, at 10 (quoting Adarand, 515 

U. S., at 227). 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 

protection violation unless the injured individual is a 

member of a protected group or a class of individuals. It is 

membership in the group—here the racial minority—that

gives rise to an equal protection violation.

 Relatedly, JUSTICE SCALIA argues that the politicalprocess doctrine is inconsistent with our precedents because it protects only the minority from political restructurings. This aspect of the doctrine, he says, cannot be 

tolerated because our precedents have rejected “‘a reading

of the guarantee of equal protection under which the level 

of scrutiny varies according to the ability of different 
 

40 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

groups to defend their interests in the representative

process.’” Ante, at 10 (quoting Richmond v. J. A. Croson 

Co., 488 U. S., 469, 495 (1989) (plurality opinion)). Equal

protection, he continues, “‘cannot mean one thing when

applied to one individual and something else when applied 

to a person of another color.’” Ante, at 10 (quoting Bakke, 

438 U. S., at 289–290) (opinion of Powell, J.).

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. 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 10, n. 7. If the minority somehow managed to effectuate a political restructuring that

burdened only the majority, we could decide then whether

to apply the political-process doctrine to safeguard the 

political right of the majority. But such a restructuring is

not before us, and I cannot fathom how it could be 

achieved. 

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 13 (opinion concurring in judgment). But 

state sovereignty is not absolute; it is subject to constitu-
 

Cite as: 572 U. S. ___ (2014) 41 

SOTOMAYOR, J., dissenting 

tional 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 13–14. 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 34–35. 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 between state sovereignty and constitutional

protections: 

“[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. 
 

42 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 15 (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. 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 (some internal quotation marks 

omitted); see also id., at 470 (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 (1976), and Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U. S. 252 

(1977), call Seattle into question. It is odd to suggest that

prior precedents call into question a later one. Seattle 

(decided in 1982) postdated both Washington v. Davis 

(1976) and Arlington Heights (1977). JUSTICE SCALIA’s 

suggestion that Seattle runs afoul of the principles established in Washington v. Davis and Arlington Heights

would come as a surprise to Justice Blackmun, who joined 

the majority opinions in all three cases. Indeed, the Seattle Court explicitly rejected the argument that Hunter had 

been effectively overruled by Washington v. Davis and 

Arlington Heights: 
 

 

 

Cite as: 572 U. S. ___ (2014) 43 

SOTOMAYOR, J., dissenting 

“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. 

And it concluded that both the Hunter amendment and 

the Seattle initiative rested on distinctions based on race. 

458 U. S., at 485. So does §26.14 

B 

My colleagues also attack the first prong of the doctrine 

as “rais[ing] serious constitutional concerns,” ante, at 11 

(plurality opinion), and being “unadministrable,” ante, at 7 

(SCALIA, J., concurring in judgment). JUSTICE SCALIA 

wonders whether judges are equipped to weigh in on what 

constitutes a “racial issue.” See ante, at 8. The plurality,

too, thinks courts would be “with no clear legal standards

or accepted sources to guide judicial decision.” Ante, at 12. 

—————— 

14The 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 14. 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? 
 

 

 

44 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

Yet as JUSTICE SCALIA recognizes, Hunter and Seattle 

provide a standard: Does the public policy at issue “inur[e] 

primarily to the benefit of the minority, and [was it] designed for that purpose”? Seattle, 458 U. S., at 472; see 

ante, at 8. Surely this is the kind of factual inquiry that

judges are capable of making. JUSTICE SCALIA, for instance, accepts the standard announced in Washington v. 

Davis, which requires judges to determine whether discrimination is intentional or whether it merely has a

discriminatory effect. Such an inquiry is at least as difficult for judges as the one called for by Hunter and Seattle. 

In any event, it is clear that the constitutional amendment 

in this case has a racial focus; it is facially race-based and,

by operation of law, disadvantages only minorities. See 

supra, at 15–16. 

“No good can come” from these inquiries, JUSTICE 

SCALIA responds, because they divide the Nation along 

racial lines and perpetuate racial stereotypes. Ante, at 9. 

The plurality shares that view; it tells us that we must not 

assume all individuals of the same race think alike. See 

ante, at 11–12. 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. 

My colleagues are of the view that we should leave race

out of the picture entirely and let the voters sort it out.

See ante, at 13 (plurality opinion) (“Racial division would 

be validated, not discouraged, were the Seattle formulation . . . to remain in force”); ante, at 9 (SCALIA, J., concurring in judgment) (“‘[R]acial stereotyping [is] at odds with

equal protection mandates’”). We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“The 

way to stop discrimination on the basis of race is to stop 
 

Cite as: 572 U. S. ___ (2014) 45 

SOTOMAYOR, J., dissenting 

discriminating on the basis of race”). It is a sentiment out 

of touch with reality, one not required by our Constitution,

and one that has properly been rejected as “not sufficient” 

to resolve cases of this nature. Id., at 788 (KENNEDY, J., 

concurring in part and concurring in judgment). While 

“[t]he enduring hope is that race should not matter[,] the 

reality is that too often it does.” Id., at 787. “[R]acial 

discrimination . . . [is] not ancient history.” Bartlett v. 

Strickland, 556 U. S. 1, 25 (2009) (plurality opinion).

Race matters. Race matters in part because of the long

history of racial minorities’ being denied access to the

political process. See Part I, supra; see also South Carolina 

v. Katzenbach, 383 U. S. 301, 309 (1966) (describing 

racial discrimination in voting as “an insidious and pervasive evil which had been perpetuated in certain parts of

our country through unremitting and ingenious defiance of 

the Constitution”). And although we have made great

strides, “voting discrimination still exists; no one doubts

that.” Shelby County, 570 U. S., at __ (slip op., at 2). 

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 (GINSBURG, J., dissenting) (cataloging 

the many ways in which “the effects of centuries of lawsanctioned inequality remain painfully evident in our

communities and schools,” in areas like employment, 

poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 

(GINSBURG, J., dissenting) (recognizing that the “lingering 

effects” of discrimination, “reflective of a system of racial

caste only recently ended, are evident in our workplaces, 

markets, and neighborhoods”). 

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 
 

 

 

46 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 18 (plurality opinion) (suggesting that racesensitive admissions policies have the “potential to become . . . the source of the very resentments and hostilities

based on race that this Nation seeks to put behind it”). I 

will therefore speak in response. 
 

Cite as: 572 U. S. ___ (2014) 47 

SOTOMAYOR, J., dissenting 

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 around the country,

were essentially segregated. In 1868, two black students 

were admitted to the University of Michigan, the first of

their race. See Expert Report of James D. Anderson 4, in 

Gratz v. Bollinger, No. 97–75231 (ED Mich.). In 1935, 

over six decades later, there were still only 35 black students at the University. Ibid. By 1954, this number had

risen to slightly below 200. Ibid. And by 1966, to around 

400, among a total student population of roughly 32,500—

barely over 1 percent. Ibid. The numbers at the University 

of Michigan Law School are even more telling. During

the 1960’s, the Law School produced 9 black graduates 

among a total of 3,041—less than three-tenths of 1 percent. See App. in Grutter v. Bollinger, O. T. 2002, No. 02– 

241, p. 204.

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 enrollment. Id., at 16–23. The University’s

Board of Regents responded, adopting a goal of 10 percent 

black admissions by the fall of 1973. Id., at 23. 
 

 

 

48 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

During the 1970’s, the University continued to improve

its admissions policies,15 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 racesensitive 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 (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 minority students

would thus have constituted 4 percent, as opposed to the 

actual 14.5 percent, of the class that entered in 2000. 

Ibid. 

—————— 

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. 
Cite as: 572 U. S. ___ (2014) 49 

SOTOMAYOR, J., dissenting 

Michigan’s public colleges and universities tell us the

same today. The Board of Regents of the University of 

Michigan and the Board of Trustees of Michigan State 

University inform us that those institutions cannot 

achieve the benefits of a diverse student body without 

race-sensitive admissions plans. See Brief for Respondents Regents of the University of Michigan, the Board of 

Trustees of Michigan State University et al. 18–25. During proceedings before the lower courts, several university

officials testified that §26 would depress minority enrollment at Michigan’s public universities. The Director of 

Undergraduate Admissions at the University of Michigan

“expressed doubts over the ability to maintain minority 

enrollment through the use of a proxy, like socioeconomic 

status.” Supp. App. to Pet. for Cert. 285a. He explained 

that university officials in States with laws similar to §26 

had not “‘achieve[d] the same sort of racial and ethnic 

diversity that they had prior to such measures . . . without 

considering race.’” Ibid. Similarly, the Law School’s Dean

of Admissions testified that she expected “a decline in

minority admissions because, in her view, it is impossible

‘to get a critical mass of underrepresented minorities . . . without considering race.’” Ibid. And the Dean of 

Wayne State University Law School stated that “although

some creative approaches might mitigate the effects of 

[§26], he ‘did not think that any one of these proposals or 

any combination of these proposals was reasonably likely 

to result in the admission of a class that had the same or 

similar or higher numbers of African Americans, Latinos 

and Native Americans as the prior policy.’” Ibid. 

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 Michigan as a percentage changed very little”

after §26. Tr. of Oral Arg. 15. It also claims that “the 

statistics in California across the 17 campuses in the 
 

 

50 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

University of California system show that today the underrepresented minority percentage is better on 16 out of

those 17 campuses”—all except Berkeley—than before

California’s equivalent initiative took effect. Id., at 16. As 

it turns out, these statistics weren’t “‘even good enough to

be wrong.’” Reference Manual on Scientific Evidence 4 (2d 

ed. 2000) (Introduction by Stephen G. Breyer (quoting 

Wolfgang Pauli)).

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/10enrolloverview.pdf 

and http://www.ro.umich.edu/report/12enrollmentsummary.pdf.16 

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. See 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. 

—————— 

16These 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. 
Cite as: 572 U. S. ___ (2014) 51 

SOTOMAYOR, J., dissenting
 

UNIVERSITY OF MICHIGAN 

Black Students17 

A recent study also confirms that §26 has decreased

minority degree attainment in Michigan. The University

of Michigan’s graduating class of 2012, the first admitted 

after §26 took effect, is quite different from previous classes. The proportion of black students among those attaining bachelor’s degrees was 4.4 percent, the lowest since

1991; the proportion of black students among those attaining master’s degrees was 5.1 percent, the lowest since 

1989; the proportion of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 

1993; and the proportion of black students among those 

attaining professional school degrees was 3.5 percent, the 

lowest since the mid-1970’s. See Kidder, Restructuring 

Higher Education Opportunity?: African American Degree

Attainment After Michigan’s Ban on Affirmative Action, 

p.1 (Aug. 2013), online at http://papers.ssrn.com/sol3/

abstract=2318523. 

—————— 

17This 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. 
 

 

52 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 underrepresented-minority students applied to, were admitted to, and enrolled at” the university. 

Brief for President and Chancellors of the University of 

California as Amici Curiae 10 (hereinafter President and 

Chancellors Brief). At the University of California, Los

Angeles (UCLA), for example, admission rates for underrepresented minorities plummeted from 52.4 percent in

1995 (before California’s ban took effect) to 24 percent

in 1998. Id., at 12. As a result, the percentage of underrepresented minorities fell by more than half: from

30.1 percent of the entering class in 1995 to 14.3 percent 

in 1998. Ibid. The admissions rate for underrepresented

minorities at UCLA reached a new low of 13.6 percent in

2012. See Brief for California Social Science Researchers 

and Admissions Experts as Amici Curiae 28. 

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 
 

Cite as: 572 U. S. ___ (2014) 53 

SOTOMAYOR, J., dissenting 

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. 

UCLA
 

Hispanic Students18
 

And the proportion of black freshmen among those 

enrolled at UCLA declined from 8 percent in 1995 to 3 

percent in 2011, even though the proportion of black

college-aged persons in California increased from 8 percent to 9 percent during that same period. See ibid. 

—————— 

18 Ibid. 
 

 

54 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

UCLA
 

Black Students19
 

While the minority admissions rates at UCLA and

Berkeley have decreased, the number of minorities enrolled at colleges across the county has increased. See 

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. 

—————— 

19 Ibid. 
 

Cite as: 572 U. S. ___ (2014) 55 

SOTOMAYOR, J., dissenting 

BERKELEY AND UCLA20 

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 Chancellors Brief 14. Since Proposition 209 

took effect, the university has spent over a half-billion 

dollars on programs and policies designed to increase 

diversity. Phillips, supra, at A3. Still, it has been unable 

to meet its diversity goals. Ibid. Proposition 209, it says,

has “‘completely changed the character’ of the university.” 

Ibid. (quoting the Associate President and Chief Policy 

—————— 

20This 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. 
 

 

 

 

56 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

Advisor of the University of California). 

B 

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 2 (ROBERTS, C. J., concurring) (suggesting that race-sensitive admissions policies 

might “do more harm than good”); ante, at 9, n. 6 (SCALIA, 

J., concurring in judgment); Grutter, 539 U. S., at 371–373 

(THOMAS, J., concurring in part and dissenting in part); 

id., at 347–348 (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. ___ (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 professional experiences is likely to affect an 

individual’s views, so too is one’s own, unique experience

of being a racial minority in a society, like our own, in

which race unfortunately still matters.” Grutter, 539 

U. S., at 333. And it acknowledges that “to cultivate a set 

of leaders with legitimacy in the eyes of the citizenry, it is

necessary that the path to leadership be visibly open to 
 

Cite as: 572 U. S. ___ (2014) 57 

SOTOMAYOR, J., dissenting 

talented and qualified individuals of every race and ethnicity.” Id., at 332. 

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 pushes such students to transcend any 

assumptions they may hold on the basis of skin color. 

Without race-sensitive admissions policies, this might well

be impossible. The statistics I have described make that 

fact glaringly obvious. We should not turn a blind eye to 

something we cannot help but see.

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 to ensure that the majority, when it wins, does so 

without rigging the rules of the game to ensure its success. 

Today, the Court discards that doctrine without good 

reason. 

In doing so, it permits the decision of a majority of the

voters in Michigan to strip Michigan’s elected university 
 

58 SCHUETTE v. BAMN 

SOTOMAYOR, J., dissenting 

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 (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 

(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.