A Worrisome Decision

Last Tuesday, the Supreme Court released its decision in Schuette v. Coalition to Defend Affirmative Action, which upheld a Michigan constitutional amendment banning the use of race-based affirmative action for public universities. The unfortunate decision needlessly disadvantages minorities in Michigan, who now face a constitutional amendment—rather than a more easily changed law—blocking affirmative action. It also opens the door to further bans in other states, which may collectively undermine minority access to education.

Michigan’s Proposal 2 passed in 2006 with 58 percent of voters in a referendum, responding to previous Supreme Court decisions allowing affirmative action. That proposal, when passed, amended the Michigan Constitution to ban the use of race-based affirmative action in any sort of public contact, including both college admissions, public employment, and contracting.

In upholding the amendment, Justice Anthony Kennedy’s plurality opinion concluded that it was not within the judiciary’s purview to circumscribe the will of a state’s people. As Kennedy wrote, “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.” But the right of the majority to debate issues should not extend to making it more difficult for racial minorities to achieve protections through the political process.

Although Justice Kennedy’s reasoning in the Schuette decision tries to avoid the issue of race, it is impossible to deny the role race plays in our country’s politics. Even a cursory look at the day’s headlines, with Clippers’ owner Donald Sterling’s banned from the NBA after an offensive recording was made public and Nevada rancher Cliven Bundy’s racist remarks, shows that racism remains an unfortunate reality.

Justice Sonia Sotomayor’s spirited dissent, which she read from the bench as a sign of her strenuous disagreement, correctly pointed out that the constitution ought to protect minority groups from the whims of the simple majority. Sotomayor rightly opposed the Court’s decision for “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.”

States with existing affirmative action bans—like California and Florida—have seen precipitous drops in black and Hispanic enrollment in public universities. Despite the Court’s apparent skepticism, this trend demonstrates that affirmative action still serves a valid national purpose. Without it, minority access to education seems to suffer a crippling blow.

Critics of affirmative action may point to "mismatch"—the phenomenon in which students are placed in an academic institution that is not commensurate with their personal educational background. Such a problem, however, may point not to issues with affirmative action itself, but to inequality in the nation’s educational system. States and the federal government should continue to look for ways to improve egalitarian access to public education, but we still have a duty to keep our institutions of higher learning diverse. Until minorities can attain equal educational access without it, affirmative action should remain the law of the land.