The Supreme Court yesterday upheld the right of voters in Michigan to end admissions to public universities by racial preferences. It was a 6-2 decision. Justice Elena Kagan recused herself.
Although the reasoning behind the ruling has been called muddled, it was the right decision in so many ways. A piece on the opinion page of the Wall Street Journal explains the ruling:
The ruling leaves in place a 2006 Michigan ballot initiative where voters ended race-based admissions at state schools, and means racial preferences won't soon return to the University of Michigan—or any other public university in states that have chosen to end the practice.
"Democracy does not presume that some subjects are either too divisive or too profound for public debate," Justice Anthony Kennedy wrote in backing the law.
The court's ruling didn't alter the ability of universities in states without bans to consider race as one factor among others in admissions. Instead, the court chipped away at affirmative action by giving its blessing to one path for foes to challenge admissions policies: ballot initiatives. Opponents have also gone to courts and state legislatures to end affirmative-action practices in a decadeslong battle over university policies.
What Justice Anthony Kennedy, writing for the majority, really upheld, even as he avoided the hard issue of racial preferences, is the right of voters to make these decisions:
“The electorate's instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this nation seeks to put behind it," Justice Kennedy wrote.
"Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism."
People who don’t like this ruling, it seems to me, likely believe two things: that citizens have no right to vote on such matters and that we remain a racist society in which bigots seek to deny minority kids their chances for a good education.
With our troubled racial history receding into the past, however, affirmative action has been transformed into something that wasn’t intended: a permanent entitlement program for people who have the same opportunities as the rest of us. If there is a roadblock to the admission of minority students to colleges and universities, the editors of National Review say in an editorial, it is that many have had no alternative to inferior public schools. A better public school system, not affirmative action, is the key to getting low-income and minority kids into colleges and keeping them there until graduation.
Perhaps the most depressing aspect of yesterday's proceedings in the Supreme Court was the illogical, 58-page dissent filed by Justice Sandra Sotomayor, and read from at length from the bench. She was joined by Justice Ruth Bader Ginsburg. As quoted by John Fund, here is some of what she said:
“The stark reality is that race still matters,” Sotomayor said. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” She went on to chastise the majority’s opinion: “My colleagues misunderstand the nature of the injustice worked by” the Michigan amendment.
Maybe it is time for a candid conversation about race. Maybe it is time to recognize that affirmative action is no longer needed and that this well-intended practice has become demeaning. And, most of all, maybe it's time to recognize that, whatever the sins of the past, by and large we are a society that doesn't need racial preferences to ensure fair treatment for our citizens. Affirmative action is a relic of the past and this ruling gives states that want to the right to abandon it.
Justice Sotomayor doesn't get the locus of the real injustice being worked against minority students: lousy schools.