OK, So Michigan Can Ban Affirmative Action. But Is the Conservative Court Right That Race No Longer Matters?

The law, lawyers, and the court.
April 22 2014 6:09 PM

OK, Michigan Can Ban Affirmative Action

But does that really mean race no longer matters, as the Supreme Court’s conservatives say?

University of Michigan 28th Annual MLK Symposium event on January 20, 2014.
University of Michigan has seen minority enrollment fall since ending race-based admissions—but other public universities have not.

Photo courtesy Gerald R. Ford School of Public Policy/University of Michigan

On the surface, the Supreme Court’s decision today to uphold Michigan’s ban on affirmative action looks pretty placid. “This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” Justice Anthony Kennedy hastens to reassure in his pro-ban opinion. “Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences.” In past cases, the court’s conservatives have gone up against states and universities that wanted to keep affirmative action. This time, they’re in the far more pleasant position of siding with Michigan voters, who banned race-based preferences in 2006. The voters acted after the Supreme Court allowed affirmative action to continue, as long as admissions officers didn’t rely on quotas, in a big important case that also came from Michigan in 2003.

Framed this way, the case came out 6–2, with only Justices Sonia Sotomayor and Ruth Bader Ginsburg disagreeing. Elena Kagan didn’t take part, and Stephen Breyer joined the five conservatives. The relatively lopsided result will surely encourage more states to join Michigan in banning affirmative action for publicly funded universities, as seven others have already done.

For liberals as well as conservatives, there’s an upside to that outcome, despite the expected denunciation by groups like the NAACP and the ACLU. According to Richard Kahlenberg of the Century Foundation, who has studied affirmative action for years, in seven of the states that have banned it, leading and other public universities have maintained black and Latino enrollment and admitted more low-income students. As I explained in October, “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.” Those are strategies for achieving racial diversity that also improve socioeconomic diversity, which at many selective schools is sorely lacking. A year ago, a new study resoundingly showed that there is a “hidden supply” of high-achieving low-income students that most schools don’t do enough to recruit. Many of these kids don’t even apply to top colleges: The schools are too unfamiliar and seem unattainable. But if the students have better information, and universities make a bigger effort to reach them, they will come. If ruling out explicitly race-based preferences pushes the schools to do more on this front, that’s a real silver lining.


But Tuesday’s ruling certainly doesn’t ensure racial diversity in public universities. In contrast to most of the other states, in Michigan itself, the admissions picture is not rosy for minorities. Since the voters banned racial preferences in 2006, the percentage of black and Hispanic first-year students at the University of Michigan has dropped from 12.15 percent to 9.54 percent. That’s a 25 percent decline, and it occurred even as the total number of college-aged blacks and Hispanics rose in the state.

That’s one reason for the roiling waters just beneath the surface of today’s ruling. But here are more: There’s no majority opinion, which means that 6–2 isn’t the whole story. Kennedy speaks for himself, Chief Justice John Roberts, and Justice Samuel Alito (three votes). Justices Antonin Scalia and Clarence Thomas are off in a corner, berating Kennedy for not going far enough (two more votes for upholding the state ban). Breyer, all alone, thinks that the other five went too far but still wants to uphold the ban (sixth vote). The arguing among them is mostly over how the ban on affirmative action passed by Michigan voters fits into a line of older local and state ballot initiatives, in the late 1960s and 1970s, in which the majority rose up to squelch gains by minorities—for example, to block busing in Seattle after the school district announced a desegregation plan. Kennedy leaves these old decisions standing, but they don’t mean what they used to mean. They no longer set meaningful limits on how a majority of voters can pass a seemingly neutral law that has a disparate effect on a minority. Now courts can only legitimately stop state action if it poses “the serious risk, if not purpose, of causing specific injuries on account of race.”

These cases, suddenly, do not imply that the minority has any right to stop the majority from imposing a policy that’s counter to the minority’s interest, if we’re talking about “the ‘interest’ of a group defined in racial terms.” Courts can’t describe any interest in such a way, according to Kennedy, because to do so would be to rely on and further racial stereotypes, and “racial division would be validated, not discouraged.” In another context—gay rights—Kennedy has worried a lot about how a majority’s display of “animus,” or prejudice, can hurt the minority. But he’s not concerned that’s what drove Michigan’s voters to ban affirmative action. This time he sees only an entirely valid democratic process.



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