Was the Supreme Court right in allowing Michigan to uphold its ban on affirmative action?
On Tuesday, April 22, 2014, the Supreme Court of the United States ruled 6-2 on a decision that the state of Michigan can uphold its ban on affirmative action. Florida and California already have bans in place.
In 2006, Michigan voters, by a margin of 58 percent to 42 percent, passed a referendum to amend the state Constitution and ban any consideration of race in college and university admissions. A federal appeals court invalidated the ban, citing earlier Supreme Court decisions that prevented restructuring government to disadvantage minorities.
The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.
Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the State Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.
The justices wrote their decisions in five separate opinions totaling more than 100 pages. The Justices had varying fervorous opinions, but the one dissent that stands out to me is considered the most passionate decision of Justice Sonia Sotomayor‘s career. She said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.” She went on to say “I had been admitted to the Ivy League through a special door.” She wrote in her best-selling memoir, My Beloved World that “I lived the day-to-day reality of affirmative action.”
In his opinion, Justice Anthony Kennedy (with the other three justices) wrote; “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”
“Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice,” Kennedy continued. “That history demands that we continue to learn, to listen and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.”
Justice Stephen Breyer stated last June in another case, “The Constitution, he said, permits but does not require states to use race-conscious admissions for educational diversity. In general,” he said, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”
It appears that Affirmative Action will probably be banned on a state by state basis from here on out. The experience with the ban in California “has been difficult because immediately following the ban on race-conscious affirmative action, the enrollment of African-Americans and Latinos plummeted in the selective higher education institutions,” says Christopher Edley, former dean of the UC Berkeley law school. He adds that the school “has yet to fully recover.”
Other states with bans have had similar precipitous drops in minority enrollment, but some have seen minority enrollment stay steady or even climb. So far it has been banned for schools, not the government or its contractors. Many private companies also follow Affirmative Action guidelines so the impact of this decision has more to do with who gets an education (Which of course leads to a better job). The University application will no longer ask what race the student is, and they will be admitted by standard principles for everyone.
I have seen Affirmative Action work both ways in my professional and personal life. On one hand, it has helped everyone become aware of how skewed admissions and jobs were between minorities and white males. Now that a generation of minorities have been able to level the playing field a little, it will be interesting to see how the statistics change. I do agree that Affirmative Action should be handled on a state level since the socioeconomic factors change in each particular state. I do not think this will lead to further discrimination, at least not on a widespread basis. We’ll have to see where the statistics on minorities entering universities shift.