Schuette v. Coalition to Defend Affirmative Action

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
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–682

															_________________

															BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN,
PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION
AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY 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
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, 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 then-Governor 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.
___ (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 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 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 conditions, 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 impermissible 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 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 –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
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 . . . con-sider” 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 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 constitu-tional 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’ 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 race-based 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. 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 race-based 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 interjected, 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 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 race-based 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 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 scru-tiny 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 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 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. Cf. Johnson v. California, 543 U. S.
499 –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 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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–682

															_________________

															BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN,
PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION
AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY 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
“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 race-conscious programs that are now barred by the
Michigan Constitution. The serious educational problems that faced
Americans at the time this Court decided Grutter endure. See, e.g.,
I. Mullis, M. Martin, P. Foy, & K. Drucker,Progress in
International Reading Literacy Study, 2011 International Results in
Reading 38, Exh. 1.1 (2012)(elementary-school students in numerous
other countries outperform their counterparts in the United States
in reading); I. Mullis, M. Martin, P. Foy, & A. Arora, Trends
in International Mathematics and Science Study (TIMSS), 2011
International Results in Mathematics 40, Exh. 1.1 (2012) (same in
mathematics); M. Martin, I. Mullis, P. Foy, & G. Stanco, TIMSS,
2011 International Results in Science, 38, Exh. 1.1 (2012) (same in
science); Organisation of Economic Co-operation Development (OECD),
Education at a Glance 2013: OECD Indicators 50 (Table A2.1a)
(secondary-school graduation rate lower in the United States than
in numerous other countries); McKinsey & Co., The Economic
Impact of the Achievement Gap in America’s Schools 8 (Apr.
2009) (same; United States ranks 18th of 24 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
thanAfrican-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 African-Americans 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, 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 Hunter-Seattle 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
admissions-related decisionmaking authority to unelected university
faculty members and administrators, see, e.g., Bylaws of Univ. of
Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of
Trustees, Preamble; Mich. State Univ. Bylaws for Academic
Governance §4.4.3; Wayne State Univ. Stat.
§§2–34–09, 2–34–12. Although the
boards unquestionably retained the power to set policy regarding
race-conscious admissions, see post, at 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 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, un-elected
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 amendments to statutes, new administrative
rules, and evolving agency practice. It is thus particularly
difficult in this context for judges to determine when a change in
the locus of decisionmaking authority places a comparative
structural burden on a racial minority. And to apply Hunter and
Seattle to the administrative process would, by tending to hinder
change, risk discouraging experimentation, interfering with efforts
to see when and how race-conscious 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 un-elected 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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–682

															_________________

															BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN,
PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION
AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY 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-based-admissions 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?
Reacting 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, Flor-ida, 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 race-neutral 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 constitutionality 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 fa-cially 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 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 court-ordered
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 “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 desegre-gated schools. Ibid. Nonetheless, we
concluded that desegre-gation “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
student-assignment issues and over most matters of educational
policy generally, under Initiative 350, minorities favoring
race-based busing would have to “surmount a considerably
higher hurdle” than the mere petitioning of a local assembly:
They “now must seek relief from the state legislature, or
from the statewide electorate,” a “different level of
government.” Ibid.

															     The relentless logic of
Hunter and Seattle would point to a similar conclusion in this
case. In those cases, one level of government exercised borrowed
authority over an apparently “racial issue,” until a
higher level of government called the loan. So too here. In those
cases, we deemed the revocation an equal-protection violation
regardless of whether it facially classified according to race or
reflected an invidious purpose to discriminate. Here, the Court of
Appeals did the same.

															     The plurality sees it
differently. Though it, too, dis-avows the
political-process-doctrine basis on which Hunter and Seattle were
decided, ante, at 10–14, it does not take 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, therewas in Seattle a
government-furthered “infliction of a
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 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 policy-making 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 ]

															     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 casesunderstanding
equal protection as a personal right.” 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 –290 (1978) (opinion of Powell,
J.).

															     The dissent trots out
the old saw, derived from dictum in a footnote, that legislation
motivated by “ ‘prejudice against discrete and
insular minorities’ ” merits
“ ‘more exacting judicial
scrutiny.’ ” Post, at 31 (quoting United States v.
Carolene Products, 304 U. S. 144 –153, n. 4). I say derived
from that dictum (expressed by the four-Justice majority of a
seven-Justice Court) because the dictum itself merely said
“[n]or need we enquire . . . whether prejudice
against discrete and insular minorities may be a special
condition,” id., at 153, n. 4 (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
“insu-larity” are political liabilities rather than
political strengths[ 8 ]—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 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 challengedaction was to redraw decisionmaking
authority over racial matters—and only over racial
matters—in such a way as to place comparative burdens on
minorities.” 458 U. S., at 475, n. 17. 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-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 entityor 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 createaffirmative-action
safe havens wherever subordinate offi-cials 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] [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 –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 –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 –538 (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 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 be shameful for us to stand in
their way.[ 11 ] Notes 1 For simplicity’s
sake, I use “respondent” or “respondents”
throughout the opinion to describe only those parties who are
adverse to petitioner, not Eric Russell, a respondent who supports
petitioner. 2 The plurality cites
evidence from ’s dissent in v. , , to suggest that the city
had been a “partial” cause of its segregation problem.
, at 9.The plurality in criticized that dissent for relying on
irrelevant evidence, for “elid[ing the] distinction between
and 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. 3 Or 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 segregation. We therefore do not
specifically pass on that issue”). 4 The dissent’s
version of this test is just as scattershot. Since, according to
the dissent, the doctrine forbids “reconfigur[ing] the
political process in a manner that only a racial minority,” ,
at 5 (opinion of , 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 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 a racial minority and “ ‘[is] designed
for that purpose,’ ” , at 44. This is the standard
purported to apply. But under that standard, §26 does not
affect a “racial issue,” because under v. , ,
race-based admissions policies may not constitutionally be
“designed for [the] purpose,” , at 472, of benefitting
primarily racial minorities, but must be designed for the purpose
of achieving educational benefits for students of all races, , ,at
322–325. So the dissent must mean that an issue is
“racial” so long as the policy in question has the
incidental effect (an effect not flowing from its design) of
benefiting primarily racial minorities. 5 And how many members of a
particular racial group must take the same position on an issue
before we suppose that the position is in the ’s interest?
Not member, the dissent suggests, , at 44. Beyond that, who knows?
Five percent? Eighty-five percent? 6 The dissent proves my
point. After asserting—without citation, though I and many
others of all races deny it—that it is “common-sense
reality” that affirmative action benefits racial minorities,
, at 16, the dissent suggests throughout, , , at 30, that that view
of “reality” is so necessarily shared by members of
racial minorities that they favor affirmative action. 7 The dissent contends, ,
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. 8 Cf., , Ackerman, Beyond ,
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 should lead
judges to protect groups that possess the opposite characteristic
from the ones emphasizes—groups that are ‘anonymous and
diffuse’ rather than ‘discrete and insular’
”). 9 The dissent thinks I do
not understand its argument. Only when amending Michigan’s
Constitution violates , it says, is that constitutionally
prescribed activity necessarily not part of the State’s
existing political process. , 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 And why does it violate ? 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 10 According to the dissent, - fills an
important doctrinal gap left open by v. , since -’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.” , at 33.
Nonsense. There is no gap. To “manipulate the ground
rules,” , at 34, or to “ri[g] the contest,” , at
35, in order to harm persons because of their race is to deny equal
protection under v. . 11 And
doubly shameful to equate “the majority” behind
§26 with “the majority” responsible for Jim Crow.
, at 1–2 (, J., dissenting). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–682

															_________________

															BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN,
PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION
AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY 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 individ-ual
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: ‘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.[ 1 ]* Notes 1 *  and question the
relationship between v. , , and v. , . See at 6, n. 2 (, concurring
in judgment); at 23, n. 9 (, dissenting). The plurality today
addresses that issue, explaining that the race-conscious action in
was unconstitutional given the absence of a showing of prior
segregation. , , at 720–721 (majority opinion), 736
(plurality opinion); see at 9. Today’s plurality notes that
the Court in “assumed” the constitutionality of the
busing remedy at issue there, “ ‘even absent a
finding of prior segregation.’ ” at 10 (quoting ,
, at 472, n. 15). The assumption on which proceeded did not
constitute a finding sufficient to justify the race-conscious
action in , though it is doubtless pertinent in analyzing .
“As this Court held in , the [Seattle] school board’s
purported remedial action would not be permissible today absent a
of segregation,” but “we must understand as understood
itself.” at 9–10 (emphasis added). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 12–682

															_________________

															BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN,
PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION
AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY 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 self-government. That right is the bedrock of our
democracy, for it preserves all other rights.

															     Yet to know the history
of our Nation is to understand its long and lamentable record of
stymieing the right of racial 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 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
poli-cies[ 2 ]—were in the
hands of each institution’s governing 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 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 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, contra,
ibid.—that is, it must be resolved in constitution-ally
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 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
–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 –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 grand-fathers 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 –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 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 ofthe 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]
realignment.” 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 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
then-Governor 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 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 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 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 major-ity
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)).

															     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 presump-tively 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, 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 minor-ity 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 ]

															     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, race-sensitive 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 bene-fit from exposure to ‘ethnic and racial
diversity in the classroom’ ”).

															     It is worth
emphasizing, moreover, that §26 is relevant only to admissions
policies that have survived strict scrutiny under Grutter; other
policies, under this Court’s rulings, would be forbidden with
or without §26. A Grutter-compliant admissions policy must use
race flexibly, not maintain a quota; must be limited in time; and
must be employed only after “serious, good faith
consideration of workable race-neutral alternatives,” 539
U. S., at 339. 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).

															     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 race-sensitive admissions policies to
vote for their candidates of choice and to lobby the elected and
politically accountable boards. Section 26 reconfigured that
structure. After §26, the boards retain plenary authority over
all admissions criteria except for race-sensitive admissions
policies.[ 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 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 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.

															     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 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 ] 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 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 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 race-sensitive 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 peo-ple running” in an upcoming
election for the Board of Regents).

															     Moreover, a careful
examination of the boards and their governing structure reveals
that they remain actively involved in setting admissions policies
and procedures. Take Wayne State University, for example. Its Board
of Governors has enacted university statutes that govern the
day-to-day running of the institution. See Wayne State Univ. Stat.,
online at http://bog.wayne.edu/code. A number of those statutes
establish general admissions procedures, see §2.34.09
(establishing undergraduate admissions procedures); §2.34.12
(establishing graduate admissions procedures), and some set out
more specific instructions for university officials, see, e.g.,
§2.34.09.030 (“Admissions decisions will be based on a
full evaluation of each student’s academic 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 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.
SeeProceedings 2003–2004, pp. 10–12 (July 2003),
onlineat http://name.umdl.umich.edu/ACW7513.2003.001. Six members
of the Board voiced strong support for the University’s use
of race as a factor in admissions. Id., at 11–12. In June
2004, the President again appeared before the Board to discuss
changes to undergraduate admissions policies. Id., at 301 (June
2004). And in March 2007, the University’s Provost appeared
before the Board of Regents to present strategies to increase
diversity in light of the passage of Proposal 2. Proceedings
2006–2007, pp. 264–265 (Mar. 2007), online at
http://name.umdl.umich.edu/ACW7513.2006.001.

															     Second, the boards may
enact bylaws with respect to specific admissions policies and may
alter any admissions policies set by university officials. The
Board of Regents may amend any bylaw “at any regular meeting
of the board, or at any special meeting, provided notice is given
to each regent one week in advance.” Bylaws §14.03. And
Michigan State University’s Board of Trustees may,
“[u]pon the recommendation 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,” 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
admissionsdecisions.

															     There is no question,
then, that the elected boards in Michigan had the power to
eliminate or adopt race-sensitive admissions policies prior to
§26. There is also no question that §26 worked an
impermissible reordering of the political process; it removed that
power from the elected boards and placed it instead at a higher
level of thepolitical 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 be-fore 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 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 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-cesses
ordinarily to be relied upon to protect minorities, and which may
call for a correspondingly more search-ing 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 legisla-tion 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 feature, 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 political-process 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 “near-limitless” 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 attempts to block
access to the ballot,” were
“ ‘second-generation 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 political-process doctrine prohibits the
exercise of democratic self-government. Nothing prevents a majority
of citizens from pursuing or obtaining its preferred outcome in a
political contest. Here, for instance, I agree with the plurality
that Michiganders who were unhappy with Grutter were free to pursue
an end to race-sensitive admissions policies in their State. See
ante, at 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 political-process doctrine seeks to remedy. The
doctrine “hews to the unremarkable notion that when two
competitors are running a race, one may not require the other to
run twice as far or to scale obstacles not present in the first
runner’s course.” BAMN v. Regents of Univ. of Michigan,
701 F. 3d 466, 474 (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.

															     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
decision-making authority from localities (where the targeted
minority group could influence the process) to state government
(where it had less ability to participate effec-tively). 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 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,
§26prevents 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.

															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 –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 –519 (1980)
(Marshall, J., concurring in judgment) (race-based governmental
action 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 political-process 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 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 constitutional limits. The Court surely did not
offend state sovereignty by barring States from changing their
voting procedures to exclude racial minorities. So why does
thepolitical-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.

															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:

															“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. 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 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) (describingracial 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 law-sanctioned 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 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 race-sensitive 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.

															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. Duringthe 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.

															     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 race-sensitive admissions. One expert
retained by the Law School opined that a race-blind admissions
system would have a “very dramatic, negative effect on
underrepresented minority admissions.” Grutter, 539
U. S., at 320 (inter-nal 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.

															     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 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.

															UNIVERSITY OF MICHIGAN

															Black Students[ 17 ]

															     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.

															     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 percentin 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 minor-ity representation at its
graduate programs and professional schools. In 2005,
underrepresented minorities made up 17 percent of the
university’s new medical students, which is actually a lower
rate than the 17.4 percent reported in 1975, three years before
Bakke. President and Chancellors Brief 13. The numbers at the law
schools are even more alarming. In 2005, underrepresented
minorities made up 12 percent of entering law students, well below
the 20.1 percent in 1975. Id., at 14.

															     As in Michigan, the
declines in minority representation at the University of California
have come even as the minority population in California has
increased. At UCLA, for example, the proportion of Hispanic
freshmen among those enrolled declined from 23 percent in 1995 to
17 percent in 2011, even though the proportion of Hispanic
college-aged persons in California increased from 41 percent to 49
percent during that same period. See Fessenden and Keller.

															UCLA

															Hispanic Students[ 18 ]

															     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
blackcollege-aged persons in California increased from 8 percent to
9 percent during that same period. See ibid.

															UCLA

															Black Students[ 19 ]

															     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.

															BERKELEY AND UCLA[ 20 ]

															     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 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 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 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. Notes 1 I of course do not mean
to suggest that Michigan’s voters acted with anything like
the invidious intent, see n. 8, , of those who historically
stymied the rights of racial minorities. Contra, at 18, n. 11
(, 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 minor-ity
members of our society. 2 Although the term
“affirmative action” is commonly used to describe
colleges’ and universities’ use of race in crafting
admissions policies, I instead use the term “race-sensitive
admissions policies.” Some comprehend the term
“affirmative action” as connoting intentional
preferential treatment based on race alone—for example, the
use of a quota system, whereby a certain proportion of seats in an
institution’s incoming class must be set aside for racial
minorities; the use of a “points” system, whereby an
institution accords a fixed numerical advantage to an applicant
because of her race; or the admission of otherwise unqualified
students to an institution solely on account of their race. None of
this is an accurate description of the practices that public
universities are permitted to adopt after this Court’s
decision in v. , . 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
, colleges and universities must use race flexibly, at 334, and
must not maintain a quota, And even this limited sensitivity to
race must be limited in time, at 341–343, and must be
employed only after “serious, good faith consideration of
workable race-neutral alternatives,” at 339. -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 intention-ally and solely on the
basis of race. 3 In , 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 because it left the rules of the
political game unchanged. Racial minorities in , unlike racial
minorities in , could still appeal to their local school districts
for relief. 4 accuses me of crafting my
own version (or versions) of the racial-focus prong. See at
8–9, n. 4 (opinion concurring in judgment). I do not. I
simply apply the test announced in : whether the policy in question
“inures primarily to the benefit of the minority.” 458
U. S., at 472. ignores this analysis, see Part II–B–1,
, and instead purports to identify three versions of the test that
he thinks my opinion advances. The first—whether
“ ‘the policy in question only a racial
minority, ’ ” at 8, n. 4 (quoting at
5)—misunderstands the doctrine and misquotes my opinion. The
racial-focus prong has never required a policy to benefit a
minority group. The sentence from which appears to quote makes the
altogether different point that the political-process doctrine is
obviously not implicated in the first place by a restructuring that
burdens members of society equally. This is the second prong of the
political-process doctrine. See 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 a racial minority,” at 8,
n. 4—is the one articulated by the Court and, as I have
explained, see 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,” at
8–9, n. 4—is not a test I advance at
all. 5 By stripping the
governing boards of the authority to decide whether to adopt
race-sensitive admissions policies, the majority removed the
decision from bodies well suited to make that decision: boards
engaged in the arguments on both sides of a matter, which
deliberate andthen make and refine “considered
judgment[s]” about racial diversity and admissions policies,
see , 539 U. S., at 387 (, J., dissenting). 6 In the face of this
overwhelming evidence, claims that it is actually easier, not
harder, for minorities to effectuate change at the constitutional
amendment level than at the board level. See 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 , 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. 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 asserts, that the process of amending the Michigan
Constitution is not a part of Michigan’s existing political
process. See 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.’ ” 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 ofthe existing political
process in Michigan: that of a constitutional
amendment. 8 It certainly is fair to
assume that some voters may have supported the amendment because of
discriminatory animus. But others may have been motivated by their
strong beliefs in the freedom of contract or the freedom to
alienate property. Similarly, here, although some Michiganders may
have voted for §26 out of racial animus, some may have been
acting on a personal belief, like that of some of my colleagues
today, that using race-sensitive admissions policies in higher
education is unwise. The presence (or absence) of invidious
discrimination has no place in the current analysis. That is the
very purpose of the political-process doctrine; it operates
irrespective of discriminatory intent, for it protects a
process-based right. 9 The plurality relies on s
dissent in to conclude that “one permissible reading of the
record was that the school board had maintained policies to
perpetuate racial segregation in the schools.” at 9–10.
Remarkably, some Members of today’s plurality criticized
’s reading of the record in itself. See 551 U. S., at
736. 10 Under
the bylaws of the University of Michigan’s Board of Regents,
“[a]ny and all delegations of authority made at any time and
from time to time by the board to any member of the university
staff, or to any unit of the university may be revoked by the board
at any time, and notice of such revocation shall be given in
writing.” Bylaws §14.04, online at
http://www.regents.umich.edu/bylaws. 11 Attempts by the majority to make it
more difficult for the minority to exercise its right to vote are,
sadly, not a thing of the past. See v. , 570 U. S. ___, ___
(2013) (slip op., at 15–17) ( dissenting) (describing recent
examples of discriminatory changes to state voting laws, including
a 1995 dual voter registration system in Mississippi to
disfranchise black voters, a 2000 redistricting plan in Georgia to
decrease black voting strength, and a 2003 proposal to change the
voting mechanism for school board elections in South Carolina).
Until this Court’s decision last Term in , the preclearance
requirement of §5 of the Voting Rights Act of 1965 blocked
those and many other discriminatory changes to voting
procedures. 12 Preserving the right to participate
meaningfully and equally in the process of government is especially
important with respect to education policy. I do not mean to
suggest that “the constitutionality of laws forbidding racial
preferences depends on the policy interest at stake.” , at
14–15 (plurality opinion). I note only that we have long
recognized that “ ‘education . . . is
the very foundation of good citizenship.’ ” , 539
U. S., at 331 (quoting v. , ). 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. 13 The
Court invalidated Amendment 2 on the basis that it lacked any
rational relationship to a legitimate end. It concluded that the
amendment “impose[d] a broad and undifferentiated disability
on a single named group,” and was “so discontinuous
with the reasons offered for it that [it] seem[ed] inexplicable by
anything but animus toward the class it affect[ed].” , 517
U. S., at 632 14 The
plurality raises another concern with respect to precedent. It
points to decisions by the California Supreme Court and the United
States Court of Appeals for the Ninth Circuit upholding as
constitutional Proposition 209, a California constitutional
amendment identical in substance to §26. , at 14. The
plurality notes that if we were to affirm the lower court’s
decision in this case, “those holdings would be invalidated
. . . .” 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? 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 v. ,
O. T. 2002, No. 02–241, p. 204. In 1976, it graduated
its first Native American student. 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. 16 These
percentages include enrollment statistics for black students,
Hispanic students, Native American students, and students who
identify as members of two or more underrepresented minority
groups. 17 This
chart is reproduced from Fessenden and Keller, How Minorities Have
Fared in States with Affirmative Action Bans, N. Y. Times, June 24,
2013, online at
http://www.nytimes.com/interactive/2013/06/24/us/affirmative-action-bans.html. 18 19 20 This
chart is reproduced from Phillips, Colleges Straining to Restore
Diversity: Bans on Race-Conscious Admissions Upend Racial Makeup at
California Schools, Wall Street Journal, Mar. 7, 2014, p.
A3.

Summary: The Supreme Court of the United States reviewed the constitutionality of a Michigan state constitutional amendment (Proposal 2) that prohibited state universities from considering race in admissions decisions. The Court found that the amendment did not violate the Equal Protection Clause of the Fourteenth Amendment, overturning the Sixth Circuit Court of Appeals' decision. The Court's decision affirmed the validity of similar amendments in other states, such as California's Proposition 209. The Court's ruling highlighted the importance of public education and the role of universities in fostering diverse leadership, but ultimately concluded that the Michigan amendment did not impose a burden on racial minorities with respect to the educational benefits afforded by the university. The Court also noted the significant increase in minority enrollment and graduation rates at the university post-Proposal 2, underscoring the amendment's positive impact on minority groups.