Affirmative action in higher education is flunking out. At the Supreme Court today in a 6-2 opinion (although under three separate rationales) overruled the U.S. Court of Appeals for the 6th Circuit, which had struck down a Michigan state proposition banning affirmative action in public employment, public education or public contracting.
In Schuette v. Coalition to Defend Affirmative Action, the court’s opinion — written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justice Samuel Alito (with Justice Stephen Breyer concurring separately and Justices Clarence Thomas and Antonin Scalia concurring in yet a third opinion) — stated: “Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.” In other words, affirmative action in higher education isn’t quite kaput, but voters are entitled to ban its use.
The court continued:
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. 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. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.
Michigan voters were not demanding that the state discriminate or even that it ignore historical injustice, merely that it not pursue one type of remedy that uses race as a factor in admissions, contracting and hiring. (“The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity — consistent with the Constitution — are a necessary part of progress to transcend the stigma of past racism.”)
In a concurring opinion, Thomas and Scalia said they would have gone further, overruling past precedents:
Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
That gave the court a total of five votes to uphold the entire proposition. Breyer in a concurrence argued that the ruling should be strictly limited: “As I have said, my discussion here is limited to circumstances in which decision making is moved from an un-elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educational benefits of a diverse student body.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor — two lonely voices equating the populace’s disdain for race-based admissions with exclusion of minorities from public benefits — dissented. (“This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.”) The only thing missing, of course, is a shred of evidence it will make it more difficult for minorities to participate in policies that “foster integration” — through race-based policies. Justice Elena Kagan, who worked on the case, recused herself.
The public, in state after state, has registered its disdain for race-based policies. This doesn’t make a majority of citizens in these states racists, nor does it damage the cause of racial equality. It is in a very real sense an affirmation of the ideal that we should be judged by the content of our character — as well as experience, achievements and intellectual capacity — not by the color of our skin.