NYT editorial whines over affirmative action setback: ‘Racial equality loses at the Court’

A blinkered view of race in America won out in the Supreme Court on Tuesday when six justices agreed, for various reasons, to allow Michigan voters to ban race-conscious admissions policies in higher education.

In 2003, the court upheld such a policy at the University of Michigan Law School because it furthered a compelling governmental interest in educational diversity. Opponents of affirmative action moved to amend the State Constitution to ban any consideration of race or sex in public education and employment. In 2006, voters passed the amendment by a wide margin.

Affirmative action supporters sued to strike down the amendment, arguing that by changing the rules of the game in a way that uniquely burdened racial minorities, the amendment violated the equal protection clause. A closely divided federal appeals court agreed.

In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court reversed that ruling and allowed the amendment to stand. Among other things, the justices disagreed about whose rights were at issue: the minorities who would be affected by the ban or the majority of the state’s voters who passed it.

Justice Anthony Kennedy, writing for a three-member plurality, sided with the voters, who he said had undertaken “a basic exercise of their democratic power” in approving the amendment. He cautioned that the ruling took no position on the constitutionality of race-conscious admissions policies themselves. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

Not so, Justice Sonia Sotomayor responded, in a stinging 58-page dissent. “Our Constitution places limits on what a majority of the people may do,” she wrote, such as when they pass laws that oppress minorities.

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That’s what the affirmative action ban does, by altering the political process to single out race and sex as the only factors that may not be considered in university admissions.

While the Constitution “does not guarantee minority groups victory in the political process,” Justice Sotomayor wrote, “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.”

The Michigan amendment has already resulted in a 25% drop in minority representation in Michigan’s public universities and colleges, even as the proportion of college-age African-Americans in the state has gone up.

In the most eloquent part of her dissent, Justice Sotomayor rightly took aim at the conservative members of the court, who speak high-mindedly of racial equality even as they write off decades-old precedent meant to address the lingering effects of “centuries of racial discrimination” — a view that is “out of touch with reality.” The reality, she wrote, is that “race matters.”

In response to her pointed rebuke, Chief Justice John Roberts Jr. wrote a terse concurrence chiding Justice Sotomayor for questioning her colleagues’ “openness and candor.” Yet the chief justice’s own words on race show no true understanding of what she called America’s “long and lamentable record” of rigging the political game against racial minorities. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote glibly in a 2007 case striking down school integration efforts in Washington and Kentucky. “Things have changed dramatically” 50 years after the Voting Rights Act, he wrote last year in Shelby County v. Holder, which struck down a provision of that act.

These quotes represent a naïve vision of racial justice. As Justice Sotomayor put it, “we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

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