For those of us who believe affirmative action programs have been largely effective at mitigating discrimination against women and minorities, Michigan voters’ decision in 2006 to outlaw such programs was a disappointing step backward.

But not all bad policy is unconstitutional, and (the) U.S. Supreme Court ruling upholding Michigan’s affirmative action ban was neither surprising nor unreasonable.

Writing for a splintered majority of six, Justice Anthony Kennedy opined that there was simply no constitutional basis for restricting the right of Michigan voters to reject race-based preferences. It’s the same conclusion U.S. District Judge David Lawson (a Clinton appointee) reached six years ago when he first upheld the legality of Proposal 2.

Three justices joined in Kennedy’s judgment but offered different rationales for their decisions. Among them was another Clinton appointee, Justice Stephen Breyer, who noted that the U.S. Constitution “foresees the ballot box, not the courts, as the normal instrument for resolving debates about the merits of these (race-conscious admissions) programs.”

The practical result of Tuesday’s ruling is that those who believe Michigan can and should pursue policies to advance the cause of equal opportunity will have to persuade the Legislature (and ultimately the electorate) that such policies are in the public interest.

That’s a difficult political hurdle, but not an impossible one. Legislators in both parties have already embraced the principle that preschool educational programs, a proven strategy for leveling the K-12 playing field for at-risk minorities, should be a funding priority. The case for other initiatives to equalize K-12 opportunity, such as expanding minority access to advanced placement courses, is equally strong.

There is also growing evidence that states that are most successful in removing barriers to minority college enrollment and professional advancement are most likely to prosper in the competition for jobs and economic development dollars. As U.S. society becomes more plural, the case for expanding educational and professional opportunities to minorities will increasingly become an economic one.

By upholding Proposal 2, justices have struck a dubious blow for voters’ right to turn back the clock on the slow march to racial and gender equality. The question now is whether Michigan voters can advance their state’s long-term interests in the absence of any judicial coercion to do so.

Detroit Free Press

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