The Supreme Court recently upheld a Michigan voter referendum that bans race-based admissions at state universities. Unfortunately, the 6-2 decision did little to settle the broader debate over the issue of racial preferences in school admissions that is being debated in states such as Texas and California.
For decades, affirmative action was used to rectify the pain and damage caused by Jim Crow laws and segregation. As expected, non-Hispanic white applicants believe that the tables had now turned on them as some students were given favorable consideration based on race, not solely on merit.
For the first time, middle-class white Americans felt marginalized. They perceived that successful white students were now being overlooked in favor of minority students who, but for their race, may not have been selected otherwise. Some states took the matter to task. In 2006, voters in Michigan changed the state constitution to eliminate race as a consideration in state university admissions which was challenged in the Supreme Court. The specific issue before the court was not about affirmative action but about the right of voters to determine public policy, a question whose answer could have far-reaching effects on a wide variety of economic and social issues.
In this case, Schuette v Coalition to Defend Affirmative Action, the majority upheld the constitutionality of the referendum, with Justice Stephen Breyer asserting that “[t]he Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.” Justice Anthony Kennedy agreed, arguing that “the courts may not disempower the voters from choosing which path to follow.” In other words, voters can decide policy for themselves.
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The ruling neither affirms nor bans affirmative action. States may consider race as one of many factors in admissions to state schools by referendum if voters so choose. There was one notable dissenter: Justice Sonia Sotomayor.
Justice Sotomayor has often stated that she is the product of affirmative action, having attended two premier universities as are Princeton and Yale. Joined by Justice Ruth Bader Ginsburg, Sotomayor read a passionate summary of her dissent, where she decried the decision by Michigan voters that “changed the basic rules of the political process in that state in a manner that uniquely disadvantaged racial minorities.” Sotomayor said Chief Justice Roberts was “out of touch with reality” because in his words “racial preferences may . . . do more harm than good.”
For Sotomayor, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
Sotomayor’s argument and personal experience raise the question of whether affirmative action in the case of educational institutions really makes a difference, and if the Constitution supports it, even if it is found to do so.
The facts are indisputable. Most of the poorer performing K-12 schools in the nation are in neighborhoods mostly populated by black and Hispanic children living at the lower end of the economic scale. There is a clear achievement gap between these children and white children who are more advantaged. Relatively few minority students apply to college, much less graduate with a two-year or four-year degree. For Hispanic students in California and Texas, college completion is only 15 percent and 17 percent, respectively, which is lower than that of other groups for first full-time freshman enrollees.
The announcement last week by the University of California that Hispanic enrollment exceeded that of white non-Hispanic students could mark the beginning of changing dynamics for Hispanics, but the trend is slow-moving and has not caught up with other minorities. At the UC, only 4 percent of enrollees are black while more than 28 percent are Hispanic and more than 24 percent are white. Asian students fill the majority of these competitive slots.
Our country needs more college graduates for the economic and social well-being of its citizens. The Supreme Court’s decision affirming voters’ rights to determine public policy in the area of affirmative action creates a greater responsibility for voters to look at all of the relevant factors to make this happen. They’re going to have go beyond the emotional; they’re going to have to think like scholars.