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No, after the Schuette case, Affirmative Action isn’t going to be OK

aabill 600Above the Law's Elie Mystal doesn't think that affirmative action supporters need to hyperventilate over Tuesday's Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action—which upheld Michigan's ban on race-conscious admissions policies at state colleges—because, he writes, the justices, in fact, "didn't rule that affirmative action is unconstitutional."

And indeed, they didn't—not this time, anyway.

Short term, all the court said was that it didn't violate 14th Amendment equal protection when Michigan voters did away with race-conscious admissions.

For now, affirmative action is still constitutional. But after Schuette, it's also perfectly legal to just put it to a vote and end it.

Which is why I'm skeptical about Mystal's "3 Reasons Affirmative Action Will Be Okay Despite Schuette Decision." He's relying on voters, admissions officers and students to be motivated to hang on to affirmative action, no matter what the court says—but I'm betting that they won't be so motivated. I'm betting affirmative action won't be OK.

The reason, I think, is that there are more folks at this point who agree with Chief Justice John Roberts, who wrote in Parents Involved in Community Schools v. Seattle School District No. 1, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." It's the idea that if we shouldn't want race to matter in college admissions, then we should never consider race in college admissions, whether or not we're aware of persistent racial inequality in education.

Even if the reality is that we're still living in a country with persistent racial inequality—only 60 years after legal segregation—the high court looks ready to call it quits on race-conscious policymaking.

Never mind—as Associate Justice Sonia Sotomayor outlines in her dissent in Schuette—that despite what society agrees on in theory, in practice, "Race matters." And that when we're talking about the fate of affirmative action, we shouldn't merely leave it at whatever voters decide, because that discounts "the long history of racial minorities' being denied access to the political process."

"The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race," she says, "and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter."

It was one of several key moments in a 50-plus-page opinion that's already been described as "epic" and "blistering"—an "allow me to reintroduce myself" moment for the court's only woman of color in which she confronted, head on, Roberts' core rationale for unwinding affirmative action. It's worth reading, even if all the legal twists and turns make your eyes glaze over.

But as compelling as it was, I'm not very confident that it'll matter in the long run, because the tension between Roberts' view and Sotomayor's view is the same tension, fundamentally, among most Americans.

Mystal is right that voters don't have to get rid of affirmative action "if they don't want to," but polls suggest that they want to. Last year an NBC News-Wall Street Journal poll found that only 45 percent of respondents think that affirmative action programs are still needed—a historic low—and Gallup found that only 28 percent think that race should be considered as a criterion in university admissions decisions.

So if the court is now leaving it all up to the discretion of the electorate, don't be surprised to see more and more states copy what Michigan voters did in 2006, amending its constitution to say that state schools or agencies can no longer factor in "race, sex, color, ethnicity, or national origin" in admissions or contracting.

It won't happen overnight—it'll be death by a thousand cuts. And Schuette makes it possible for affirmative action to die that slow death, at the hands of voters, without the court having to do anything else to kill it.

(David Swerdlick is an associate editor at The Root. Follow him on Twitter.)

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