By William Yeomans
Fellow in Law and Government at American University
Washington College of Law
Following the October oral argument in Schuette v. Coalition to Defend Affirmative Action, I wrote for this blog that the Court appeared poised to continue “its relentless march toward evisceration of remedies for racial discrimination.” That prediction was fulfilled yesterday when the Court issued its opinion, upholding the authority of the people of Michigan to amend the state constitution by referendum to prohibit consideration of race in university admissions. The vote was 6-2 in favor of the ban. Justice Breyer joined the five conservatives, Justice Sotomayor, joined by justice Ginsburg, wrote a vigorous and lengthy dissent, and Justice Kagan recused herself, presumably because she participated in the case as Solicitor General. Of course, because each Justice is free to choose to recuse or participate without the need to state a reason, we, the taxpayers, will never know for sure.
My previous post described more fully the facts and procedural posture of the case. Briefly, following the Court’s validation of the race-conscious admission process of the University of Michigan Law School in Grutter v. Bollinger, Ward Connerly launched a referendum drive to ban consideration of race from all elements of public life in Michigan, including university admissions. The people of Michigan approved the referendum by a vote split along racial lines; whites overwhelmingly supported it and African Americans overwhelmingly opposed it. The white majority voted to deny minority applicants a benefit that the Supreme Court had declared lawful and Michigan’s universities wished to continue. Referenda are rarely kind to minority rights.
The Sixth Circuit faithfully applied Supreme Court precedent to hold that the referendum violated the Equal Protection Clause of the Fourteenth Amendment because it restructured the political process to create a new set of rules governing a racial issue and made it more difficult for minorities to obtain a benefit. Whereas an individual seeking to have the University of Michigan adopt legacy preferences would have only to convince the Board of Regents, someone seeking to have race considered in admissions would have to amend the state constitution. This change seemed pretty clearly to run afoul of the Court’s decisions in Hunter v. Erickson and Washington v. Seattle School District.
The Supreme Court, however, blew through those precedents to uphold the ban. Justice Kennedy, writing for himself, Chief Justice Roberts and Justice Alito, narrowed those cases so thoroughly it is unlikely they will ever be seen again. Justice Scalia, writing for himself and Justice Thomas, as usual, would not have bothered with the nicety of distinguishing the cases; he would have simply overruled them and abolished the political restructuring doctrine. And Justice Breyer, moved by the symmetry of allowing the electorate to approve and disapprove affirmative action programs, joined the result, while trying ineffectually to limit the scope of the holding.
The outcome surprised no one, but the opinions crystallize the ideological divide on the Court regarding race. Justice Kennedy, of course, continued his three-card monte game of speaking in seductively reasonable terms about race to lure unwary marks into believing that he can be won over only to vote consistently against minority interests.
The real action, however, emerged between Chief Justice Roberts and Justice Sotomayor. In her dissent, Sotomayor spoke passionately and insightfully about the continuing impact of race in our society and the value of affirmative action. She called out the majority on its view that the only racial problem we face is that people keep acknowledging and talking about race. She urged the majority to deal honestly and openly with the reality that race matters. Most pointedly, she mocked Roberts’ comical comment from Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” by suggesting that just maybe “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Well, that sent the Chief Justice into a paroxysm of conservative indignation. How dare the come-lately Latina Justice lecture him on race. Sotomayor described how racially inspired “slights . . . snickers [and] silent judgments” can “reinforce that most crippling of thoughts: I do not belong here.” Roberts couldn’t resist; displaying his superior understanding of how racism affects its victims, he responded that racial preferences may produce exactly the effect Sotomayor attributed to racism; they reinforce the doubt Sotomayor described and do more harm than good. Presumably, he knew that because Justice Thomas told him of the horrors of attending Yale Law School as an African American. He then resorted to the old stand-by of conservatives challenged for their consistent opposition to minority interests; he said she wasn’t playing fair.
This spat is the latest manifestation of the Court’s divide on race. The conservatives turn their backs on 400 years of history and the continuing effects of centuries of slavery and decades of Jim Crow. Fueled by an ideology born of the confluence of resistance to Brown v. Bd. of Education, the civil rights acts of the 1960’s and Roe v. Wade on one hand, and the rise of a conservative legal movement fueled by corporate interests on the other, they have turned our protections against discrimination upside down. They have distorted the law to make it easier for white plaintiffs than minority plaintiffs to prevail. Abigail Fisher need only allege that the University of Texas considers race in admissions and she becomes the presumptive winner, regardless whether she was denied admission because of her race. An African American applicant, however, has to prove that the University intentionally discriminated against her on the basis of race– an exceedingly difficult burden– and that she was denied admission because of her race. The conservative majority adheres to the ahistorical and anti-originalist notion that the constitution is colorblind and that the principal evil that it proscribes is the classification of individuals based on race. These doctrines preclude meaningful remedies for our discriminatory past.
The immediate effect of the Court’s holding will be to empower other states to pursue referenda prohibiting consideration of race. Doubtless, there will be attempts to do so. It falls to supporters of diversity in education to resist those efforts in the political process. As we become a more diverse nation, there is hope that most states will resist these referenda. In the long run, they will surely harm the state schools bound by them as they compete with more enlightened state institutions and private colleges and universities. After all, what promising applicant is going to be drawn to a classroom full of nothing but young John Robertses when she can choose classrooms featuring Sonia Sotomayors, Thurgood Marshalls, Ruth Bader Ginsburgs, and even a few John Robertses?