Federal Affirmative Action Programs Unaffected by High Court's Decision on Michigan Law

April 25, 2014

Though it has generated considerable controversy, this week's U.S. Supreme Court decision upholding Michigan's ban on preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public employment, education, and contracting does not affect federal affirmative action programs.  Justice Kennedy noted in the decision: "This case is not about how the debate about racial preferences should be resolved.  It is about who may resolve it."  The constitutionality of affirmative action programs has generally been upheld, but in recent years the debate has shifted to whether and when such programs may be phased out.  The decision made it clear that the current Court would reject any similarly argued challenges to the bans on racial preferences adopted by voters in Arizona, California, Nebraska, Oklahoma, and Washington.  Some opponents of affirmative action have argued that affirmative action should be refocused on those who are economically disadvantaged.