Leaders in higher education, upset by Tuesday’s Supreme Court decision upholding Michigan’s ban on race-based preferences in college admissions, said the ruling would nudge them further along the path of finding alternative means to promote diversity in their student bodies.
Race remains a permissible element in admissions in states without such a ban, and many educators hailed the dissent by Justice Sonia Sotomayor, which emphasized the continuing significance of race. Still, they said affirmative action appeared to have a limited future.
“Most of us have already started to look at other variables than race, especially first-generation students, and low-income students,” said Muriel Howard, president of the American Association of State Colleges and Universities. In debates taking place in various parts of the country, many educators have argued that such methods produce diversity but far less effectively.
The California Senate, seeking to increase minority representation at state university campuses, passed a bill this year that would have eliminated Proposition 209, that state’s 1996 ban on racial preferences. The bill was backed by many Latinos, but opposed by many Asian groups. Last month, the State Assembly speaker sent it back to the Senate without taking any action.
This month, in what could become the next round of affirmative-action litigation, the Virginia-based Project on Fair Representation set up websites featuring photos of Asian students in an attempt to find plaintiffs for race-based discrimination suits against Harvard, the University of North Carolina and the University of Wisconsin.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, has argued that colleges can achieve diversity without considering race, through such measures as admitting the top students from each high school in the state, taking family income into account and ending preferences for legacy students.
“Colleges don’t want to do it because they’d rather assemble a class of wealthy students of all colors,” he said.
Some who support state bans on racial preferences said such prohibitions might spread as a result of the Supreme Court decision.
Roger Clegg, president of the conservative Center for Equal Opportunity, said he hoped to see the bans proliferate, whether through ballot initiatives or legislation.
“Not every state has ballot initiatives, but where ballot initiatives are not available, state legislatures should act,” he said. “And where state legislatures won’t act, then action should be taken at the local level.”
But some of the prime movers behind the bans said they did not expect a flurry of new ones — in part because they believed their fight against racial preferences was mostly won.
“I think this issue is largely settled,” said Ward Connerly, president of the American Civil Rights Institute. “Most Americans have made up their minds that the government should not treat people differently based on race, and they’re kind of impatient that we continue to wrestle with the question.”
Mr. Connerly, a former California regent who took his campaign to ban racial preferences to eight states, said he had no plans to work toward referendums in more states, and would be surprised if any other organization decided to spend significant resources to do so.
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“I think where this is going to go is more universities trying to craft policies that rely on socioeconomic factors, and they won’t get much of a quarrel as long as they don’t make those policies smell like race-based factors,” Mr. Connerly said.
And Jennifer Gratz, a plaintiff in one of the cases against the University of Michigan and founder of the XIV Foundation, said that while she would support efforts for more bans, she was now interested in moving beyond such a fight.
“At this point, I think there needs to be a process to start to talk with people who believe they need race preferences to succeed, and tell them why in this day and age, no one needs a government preference based on their skin color,” she said.
Many who have backed the continued use of race in admissions criteria say the growing focus on social and economic factors is a matter of practical politics.
“The reason we’re moving to income-based affirmative action is that it’s politically viable, and allows a coalition we haven’t seen since Bobby Kennedy, of working-class whites and minorities,” said Anthony P. Carnevale, director of the Center on Education and the Workforce at Georgetown University. “But it won’t solve the problem, since our system of higher education now faithfully reproduces race and class differences across generations.”
Since 1994, he said, higher education has become increasingly two tiered, with 85 percent of white students going to the top 500 four-year colleges, and 75 percent of black and Latino students going to open-admissions schools. “In the end, you can’t avoid dealing with race,” he said.
Kati Haycock, president of the liberal Education Trust, said she could not deny that most people who follow the Supreme Court believe the clock is running out on race-based admissions policies.
“I just keep wishing that the people who spend so much time trying to end racial preferences in higher ed would work to end the racial differences in the education we provide K-12, which is why we need the racial preferences,” she said.
The New Yor Times
A blinkered view of race in America won out in the Supreme Court on Tuesday when six justices agreed, for various reasons, to allow Michigan voters to ban race-conscious admissions policies in higher education.
In 2003, the court upheld such a policy at the University of Michigan Law School because it furthered a compelling governmental interest in educational diversity. Opponents of affirmative action moved to amend the State Constitution to ban any consideration of race or sex in public education and employment. In 2006, voters passed the amendment by a wide margin.
Affirmative action supporters sued to strike down the amendment, arguing that by changing the rules of the game in a way that uniquely burdened racial minorities, the amendment violated the equal protection clause. A closely divided federal appeals court agreed.
In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court reversed that ruling and allowed the amendment to stand. Among other things, the justices disagreed about whose rights were at issue: the minorities who would be affected by the ban or the majority of the state’s voters who passed it.
Justice Anthony Kennedy, writing for a three-member plurality, sided with the voters, who he said had undertaken “a basic exercise of their democratic power” in approving the amendment. He cautioned that the ruling took no position on the constitutionality of race-conscious admissions policies themselves. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
Not so, Justice Sonia Sotomayor responded, in a stinging 58-page dissent. “Our Constitution places limits on what a majority of the people may do,” she wrote, such as when they pass laws that oppress minorities.
That’s what the affirmative action ban does, by altering the political process to single out race and sex as the only factors that may not be considered in university admissions.
While the Constitution “does not guarantee minority groups victory in the political process,” Justice Sotomayor wrote, “it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently.”
The Michigan amendment has already resulted in a 25 percent drop in minority representation in Michigan’s public universities and colleges, even as the proportion of college-age African-Americans in the state has gone up.
In the most eloquent part of her dissent, Justice Sotomayor rightly took aim at the conservative members of the court, who speak high-mindedly of racial equality even as they write off decades-old precedent meant to address the lingering effects of “centuries of racial discrimination” — a view that is “out of touch with reality.” The reality, she wrote, is that “race matters.”
In response to her pointed rebuke, Chief Justice John Roberts Jr. wrote a terse concurrence chiding Justice Sotomayor for questioning her colleagues’ “openness and candor.” Yet the chief justice’s own words on race show no true understanding of what she called America’s “long and lamentable record” of rigging the political game against racial minorities. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote glibly in a 2007 case striking down school integration efforts in Washington and Kentucky. “Things have changed dramatically” 50 years after the Voting Rights Act, he wrote last year in Shelby County v. Holder, which struck down a provision of that act.
These quotes represent a naïve vision of racial justice. As Justice Sotomayor put it, “we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.
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