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.

The single point on which Scalia and Sotomayor agree is that Kennedy has reinterpreted the 1960s and 1970s rulings beyond recognition. (Best Scalia zinger: “Moving from the appalling to the absurd.”) Scalia wants simply to overrule the old cases that worried about majorities trampling over minorities. He goes further, attacking one of the Supreme Court sentences most cherished by the left: a footnote in a 1938 case called United States v. Carolene Products. The case is about how Congress could regulate the sale of milk, but never mind: The crucial footnote (No. 4) observes that a law motivated by “prejudice against discrete and insular minorities” merits “more exacting judicial scrutiny.” Mountains have been made from footnote No. 4. Scalia brings in the bulldozers for mountaintop removal. He calls the footnote an “old saw.” He quotes an article called Is Carolene Products Obsolete?” And he questions why black and Hispanics—14.3 percent and 4.6 percent of the population in Michigan, respectively—can’t wield plenty of political power.

In a lengthy dissent that she read part of from the bench, Sotomayor argues that the concern about minority rights in that footnote is at the heart of a host of rulings that promote “meaningful participation in the political process”—in particular, decisions that protected the right to vote by striking down poll taxes and literacy tests. Today, this doesn’t just mean “removing barriers to participation.” It also means “vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing.” In banning affirmative action, Sotomayor says, Michigan’s voters uniquely disadvantaged black and Hispanic voters by taking this tool away from the elected board members who set admissions policies for the state universities.

I still think there is a difference between a local ordinance that bans busing or fair housing, which aim for equal treatment, and a ballot initiative that takes away a preference based on race. That’s how I made my peace with the outcome today.

But I had my doubts when I got to a telling exchange between Roberts and Sotomayor. It’s over the basic underlying question that is nowhere resolved in this case: Whether affirmative action—or any awareness of race—is still needed or valid. Sotomayor stands up for the “importance of diversity in institutions of higher education” and despairs “how little my colleagues understand about the reality of race in America.” Race matters, she says, because of “persistent inequality in society.” She continues:

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

Roberts doesn’t let her have the last word. He quotes her “doubt” about belonging, and retorts that

it is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue.

I can’t read this without noting that in previous cases, Roberts has expressed his preference for color-blindness. This is where the conservatives on the court lose me. Good faith or no, it is at odds with reality to imagine that race no longer matters. I hope the states that ban affirmative action continue to enroll more low-income students as they also find ways to admit black and Hispanic applicants. But we still live in a world of race and class considerations. Not either/or.

Emily Bazelon was a Slate senior editor from 2005 to 2014. She is the author of Sticks and Stones.

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