The majority’s ruling was brief, arguing that the key question in this case wasn’t whether affirmative action is constitutional, but whether it is constitutional for a state to abandon it if the state chooses. “This case is not about how the debate about racial preferences should be resolved,” Justice Kennedy wrote. “It is about who may resolve it.”
As a legal matter in this specific case, that judgment was perfectly reasonable. But since the rest of us aren’t Supreme Court justices, we’re free to look at what’s actually happening in the world and render a different kind of judgement. The Court, and Chief Justice Roberts in particular, sees issues of racial discrimination as simple and straightforward. “The way to stop discrimination on the basis of race,” he famously wrote, “is to stop discriminating on the basis of race.”
No problem there. He wrote those words, however, in a decision striking down efforts by school districts to desegregate their schools — an attempt to grapple with problems that persisted even after explicitly discriminatory policies departed from the law. But in the world of the man who during his confirmation hearings said the role of a Supreme Court justice was nothing more complicated than “calling balls and strikes,” every decision is easy, so long as the right people win.
When you look at polling on this question, the public looks somewhat confused. If you ask about affirmative action generally as a means of helping racial minorities, a majority of the public says its in favor. But if you ask specifically about college admissions and frame it as a choice between “merit” on the one hand and admitting allegedly unqualified minorities on the other (see this Gallup poll for an example), healthy majorities oppose affirmative action.
And that framing has come to dominate our thinking about this issue, though it has next to nothing to do with how things actually work. In the real world, if hundreds or thousands of black students have their opportunities constrained because of a system that places obstacles in their particular path, then most of us shrug and say, that’s just the way things are, and there isn’t anything that can or should be done about it. But if an affirmative action program should result in a single white student having to go to her second choice school? Then we must change the law, and move heaven and earth to make sure it never happens again.
Meanwhile, the preferences whites enjoy remain firmly in place. There have yet to be any successful laws or ballot initiatives to ban “legacy admissions,” in which applicants who had a relative who attended the university are given special preference. No one can come up with rational grounds for retaining this affirmative action for wealthy white people, yet universities all across the country do. And there are other only slightly less blatant forms of favoritism; for instance, the reliance on standardized test scores provides a boost for wealthy students, most of them white, whose parents can afford expensive test prep courses and tutoring. Again, no serious person contends that SATs or ACTs are a pure measure of “merit,” yet they continue to play a huge role in college admissions.
After the initiative in Michigan passed in 2006, black enrollment at the University of Michigan plunged by 30 percent. Were the missing black students lacking in “merit,” and was the university better for their absence? The Supreme Court says it isn’t their place to decide, and in this one rather narrow case they’re probably right. But the rest of us can.