On the surface, the Supreme Court's decision this week to uphold Michigan's ban on affirmative action looks pretty placid. "This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education," Justice Anthony Kennedy hastens to reassure in his pro-ban opinion. "Rather, the question concerns whether, and in what manner, voters in the states may choose to prohibit the consideration of such racial preferences."
In past cases, the court's conservatives have gone up against states and universities that wanted to keep affirmative action. This time, they're in the far more pleasant position of siding with Michigan voters, who banned race-based preferences in 2006.
Framed this way, the case came out 6-2, with only Justices Sonia Sotomayor and Ruth Bader Ginsburg disagreeing. Elena Kagan didn't take part, and Stephen Breyer joined the five conservatives. The relatively lopsided result will surely encourage more states to join Michigan in banning affirmative action for publicly funded universities, as seven others have already done.
For liberals as well as conservatives, there's an upside to that outcome. According to Richard Kahlenberg of the Century Foundation, who has studied affirmative action for years, in seven of the states that have banned it, leading and other public universities have maintained black and Latino enrollment and admitted more low-income students. As I explained in October, "Some of the schools have taken income and wealth and neighborhood into account. Some have plans that admit the top 10 percent of high school graduates statewide. Three have banned legacy preferences." Those are strategies for achieving racial diversity that also improve socioeconomic diversity, which at many selective schools is sorely lacking.
A year ago, a new study resoundingly showed that there is a "hidden supply" of high-achieving low-income students that most schools don't do enough to recruit. Many of these kids don't even apply to top colleges. If ruling out explicitly race-based preferences pushes the schools to do more on this front, that's a real silver lining.
But this week's ruling certainly doesn't ensure racial diversity in public universities. In contrast to most of the other states, in Michigan itself, the admissions picture is not rosy for minorities.
The courts no longer set meaningful limits on how a majority of voters can pass a seemingly neutral law that has a disparate effect on a minority. Now courts can only legitimately stop state action if it poses "the serious risk, if not purpose, of causing specific injuries on account of race."
In a lengthy dissent that she read part of from the bench, Sotomayor argues that concern about minority rights is at the heart of a host of the court's rulings that promote "meaningful participation in the political process" — in particular, decisions that protected the right to vote by striking down poll taxes and literacy tests.
In banning affirmative action, Sotomayor says, Michigan's voters uniquely disadvantaged black and Hispanic voters by taking this tool away from the elected board members who set admissions policies for the state universities.
I still think there is a difference between a local ordinance that bans busing or fair housing, which aim for equal treatment, and a ballot initiative that takes away a preference based on race. That's how I made my peace with the outcome this week.
But I had my doubts when I thought about the underlying question that is nowhere resolved in this case: Whether affirmative action — or any awareness of race — is still needed or valid. Sotomayor despairs "how little my colleagues understand about the reality of race in America." Race matters, she says, because of "persistent inequality in society." In her dissent, she continues:
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."
This is where the conservatives on the court lose me. Good faith or no, it is at odds with reality to imagine that race no longer matters. I hope the states that ban affirmative action continue to enroll more low-income students as they also find ways to admit black and Hispanic applicants. But we still live in a world of race and class considerations. Not either/or.
Emily Bazelon is a fellow at Yale Law School. She is the author of "Sticks and Stones."
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