Liberals Deserve to Lose Tuesday’s Big Affirmative Action Case at the Supreme Court

The law, lawyers, and the court.
Oct. 14 2013 5:44 PM

The Michigan Experiment

The affirmative-action case liberals deserve to lose.

The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC.
The justices, minus Elena Kagan, will be hearing Schuette v. Coalition to Defend Affirmative Action.

Photo by Tim Sloan/AFP/Getty Images

Lucky Elena Kagan. She gets to sit out this year’s affirmative action case at the Supreme Court, probably because she worked on a related matter when she was solicitor general. Part of me wishes I could skip it, too.  This is a case that liberals will lose, and probably deserve to lose.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Schuette v. Coalition to Defend Affirmative Action is not about whether states can continue giving race-based preferences to black and Hispanic applicants to state universities. That was the subject of last term’s Supreme Court challenge Fisher v. University of Texas. In that one, the court allowed affirmative action to continue in the name of promoting diversity (though it also made it harder for schools to do it).

The new case is the upside-down version of the last one: It’s about whether states may ban schools from using affirmative action. That’s what Michigan did by passing a ballot initiative in 2003 called Proposal 2. I wouldn’t have voted for it. But should the Supreme Court say that when voters decide to restrict the use of affirmative action, they have violated the Constitution? There is no way that the conservative majority of the Supreme Court will answer yes. And that is probably the correct outcome in terms of policy. To say so deviates from the usual liberal line on affirmative action, laid out today in a New York Times editorial. And yet: The current huge fairness problem in university admissions isn’t race-based. It’s class-based. And it is at the schools of the 10 states across the country that have banned affirmative action where the most interesting socioeconomic alternatives are unfolding. The Supreme Court won’t stand in the way of those experiments. And it shouldn’t.

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But the U.S. Court of Appeals for the 6th Circuit, the lower court in Schuette, struck down the ballot initiative banning affirmative action, in an 8-7 split. The majority relied on a couple of previous Supreme Court rulings. Neither is about affirmative action. In one of the cases, decided in 1969, the voters of Akron, Ohio, got rid of a fair housing ordinance passed by their city council and amended the city charter to make it harder for any other such ordinance to take effect. The Supreme Court said the change to the political process was discriminatory because the impact fell only on black residents. In the second case, after the Seattle school district announced it would start busing students in 1978, to desegregate the city’s schools, voters passed a ballot initiative to block the busing. The Supreme Court struck down that initiative for “moving the power over busing for purposes of integration to state control.”

You can see why these older cases appealed to the 6th Circuit as a route to striking down Michigan’s voter ban on affirmative action. Michigan’s voters also messed around with the political process. They also took discretion away from local officials —this time, university administrators.

The problem is that the goal of busing plans and fair-housing laws is to treat everyone equally. So the voter initiatives blocking them in Akron and Seattle flew in the face of equal treatment. Michigan’s Proposal 2, by contrast, involves taking away a means of preferential treatment, based on race. Affirmative action, formally speaking, isn’t about treating all applicants equally. It’s about introducing a different set of standards for some applicants. A more equal society may be the broader long-term goal of affirmative action. But the way you get there is by treating people differently, based on race.

As University of Chicago law professor Richard Epstein points out, it’s not clear what’s wrong with Proposal 2 that wouldn’t also be wrong with other formally colorblind laws that prohibit discrimination on the basis of race (or sex or religion or ethnicity).

Epstein proposes that the real problem with Proposal 2 is the same thing that was wrong with the Defense of Marriage Act. In striking down the key provision of DOMA that prevented the federal government from recognizing the state-approved marriages of gay couples, Justice Anthony Kennedy said for the majority, essentially, that what really motivated Congress was prejudice against gay people. "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote.

The parallel to the Michigan affirmative action case would be this: There’s no legitimate reason to ban affirmative action. It’s just white voters venting their spleen. You can also weave in, as this brief by the Leadership Conference on Civil and Human Rights in the Schuette case does, an old but dear footnote from a 1938 Supreme Court case called Carolene Products: “prejudice against discrete and insular minorities ... which tends seriously to curtail the operation of those political process ordinarily to be relied upon to protect minorities ... may call for a correspondingly more searching judicial inquiry.”

But does it really make sense to say that there’s no legitimate reason for a state to eliminate race-based preferences in admissions? The current reality is that it is all poor students who are terribly, shockingly under-represented in universities. One reason is that they are also shockingly underserved by their K-12 schools. As Richard Kahlenberg of the Century Foundation shows, the cost of socioeconomic disadvantage is an average of 399 SAT points. The SAT gap between African-American and white students of the same socioeconomic status, by comparison, is just 56 points. Yet the economically disadvantaged get no affirmative-action-like admissions help at most schools.

Schools have said for years that they’re doing all they can to attract high-achieving poor students. A well-publicized study last spring proved otherwise. As I wrote then, “the difference is information and your sense of the possible—what you know about, what you learn from the experiences of people around you.” A few selective schools have stepped up recruitment. Plenty of others have not. This is about money: Financial aid costs more if you admit more poor kids. And it’s about incentives: The colleges with shamefully small numbers of low-income students pay no political price. Their all-important U.S. News and World Report numbers don’t suffer. Here are the rankings, for a change, in terms of which schools are better or worse about low-income admissions.

Kahlenberg has found that in seven of the 10 states with affirmative action bans, the leading public universities figured out how to maintain the previous level of African-American or Hispanic representation in the student body and admit more low-income students. Some of the schools have taken income and wealth and neighborhood into account. Some have plans that admit the top 10 percent of high school graduates statewide. Three have banned legacy preferences.

At the University of Michigan, on the other hand (along with UC-Berkeley and UCLA) minority enrollment has dropped with the affirmative action ban. Maybe that’s because the admissions process doesn’t take into account family wealth or the neighborhood a student comes from. Or maybe it’s because the University of Michigan is the kind of elite school that competes with other national elite schools, which do still deploy affirmative action. Indeed, one concern about the Supreme Court’s general skepticism about affirmative action is that it will turn racial diversity into a luxury only wealthy elite schools can afford.

For the Supreme Court, though, the question is still this: Does the Constitution require every public university to have the option of using race-based preferences in admissions? That’s a stretch for the meaning of equal protection. The conservative majority on the Supreme Court won’t make it. That’s OK, as long as the court encourages states to work on getting more low-income kids of every race into higher education. That’s the fairness we need most.