When the United States Supreme Court upheld Michigan’s ban on affirmative action in higher education Tuesday, the justices weren’t just endorsing similar bans in seven other states and inviting future ones. They were, fundamentally, continuing a painful conversation among themselves, and between themselves and the rest of us, on the topic of race in America.
It is a conversation that has been ongoing in its present iteration since the Court’s ideological core shifted to the right almost a decade ago, following the resignation of Justice Sandra Day O’Connor in July 2005. She was replaced by a far more conservative jurist, Justice Samuel Alito, the Court’s center of gravity then shifted from Justice O’Connor to the more conservative Justice Anthony Kennedy, and the ascent of Chief Justice John Roberts, who replaced his friend and mentor Chief Justice William Rehnquist, made the Court’s transition complete.
And it’s a conversation that, judging from the past few related decisions, isn’t bridging the racial divide in this country but rather splintering it further apart. The Court’s ruling in Schuette v. Coalition to Defend would not have happened 10 years ago. We know this because Justice O’Connor herself, in Grutter v. Bollinger, another case out of Michigan, crafted a 5-4 ruling that gave such remedial programs another shaky decade of life. But now they are as good as dead and, as Justice John Paul Stevens said in another context, the Court’s majority didn’t even have the courtesy to give them a proper burial.
Instead, they will be killed over time by what Justice Anthony Kennedy labeled as the procedural necessity of allowing state voters to impose their will upon minorities. We aren’t ruling on the merits of affirmative action, the justice wrote, instead we are merely allowing the voters of Michigan to render their own judgment about affirmative action. And even though that action commands university administrators not to consider race as a factor in admissions, and even though everyone understands that the Michigan measure was passed to preclude what supporters called “racial preferences,” this democratic choice somehow does not offend equal protection principles under the Constitution.
Also unthinkable before the Roberts Court kicked into gear would have been its Court’s decision last June in Shelby County v. Holder to strike down the preclearance provision of the Voting Rights Act. And it would be a mistake today not to connect that ruling to the one in Schuette. They are different sides of the same coin. Shelby County told white politicians in the South that they could now more freely change voting rules to make it harder for minorities to vote. Tuesday’s decision tells white voters that they can move via the ballot box to restrict remedies designed to help minority students and, by extension, communities of color. In each case, the Court sought to somehow extract race out of racial problems.
In Shelby County, the Court’s majority refused to acknowledge the will of the people as expressed through Congress, which repeatedly had renewed Section 4 of the Voting Rights Act with large bipartisan majorities. Yet in Schuette, the Court’s majority rushed to embrace the will of the people of Michigan as expressed in their rejection of affirmative action. Contradiction? Sure. But what these cases have in common is clear: this Court is hostile to the idea that the nation’s racial problems are going to be resolved by policies and programs that treat the races differently. This is what the Chief Justice means when he says, as he did in 2007, that “the way to stop discriminating on the basis of race is to stop discrimination on the basis of race.”
In a perfect world– a post-racial world, you might say—the Chief Justice would be absolutely correct. But the problem with his formula is that he seeks to declare it at a time when there is still in this country widespread discrimination, official and otherwise, based upon race. It is present in our criminal justice systems. It is present still in our election systems. It is present economically and politically even though, as conservatives like the Chief Justice like to point out, far more minorities participate in the political process then did half a century ago. And so the idea that now is the time to stop reflecting this reality in constitutional doctrine is to me a dubious one. “Enough is enough,” the essence of Justice Antonin Scalia’s argument, is neither a solution nor a just way in which to end the experiment in racial justice we’ve experienced in America for the past 50 years. Enough may be enough for white Americans. But it’s not nearly enough for citizens of color.
And this surely is what Justice Sotomayor had in mind when she wrote her dissent in Schuette. What is the role of the federal judiciary if not to protect the rights of minorities against the tyranny of majority rule?
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. 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.
This is the language that future historians will cite when they cite this cynical decision and this troubling era in America’s racial history. What’s the best evidence that the Supreme Court has it all wrong? Just consider how the two Americas, the two solitudes, reacted to the news of Schuette. The Chief Justice, in his short and defensive concurrence, accused Justice Sotomayor of “doing more harm than good to question the openness and candor of those on either side of the debate.” But to Justice Sotomayor, and to those who share her view, there is no debate. It’s already over. And the side that usually wins in America clearly has won again.
By: Andrew Cohen, Fellow, The Brennan Center For Justice at New York University School of Law; April 23, 2014
Affirmative action has opened doors for disadvantaged minorities and made this a fairer, more equal society. The Supreme Court under Chief Justice John Roberts apparently wants no more of that.
This week’s big ruling — upholding a Michigan constitutional amendment that bans public universities from considering race in admissions — claims to leave affirmative action alive, if on life support. But the court’s opinion, ignoring precedent and denying reality, can be read only as an invitation for other states to follow suit.
Justice Sonia Sotomayor’s thundering dissent should be required reading. She sees what the court is doing and isn’t afraid to call out her colleagues on the disingenuous claim that the ruling in Schuette v. Coalition to Defend Affirmative Action is limited in scope. It has implications that go beyond college admissions to other areas, such as voting rights, where majorities seek to trample minority rights.
By “rights,” I mean not affirmative action but the principle, upheld repeatedly by the court, that the political process should be a level playing field. In Michigan, with the high court’s blessing, anyone who wants to advocate for affirmative action is at a disadvantage. Instead of banning the policy outright — which would at least be honest — the court paints it with a bull’s-eye and strips it of defenses.
The case involves the University of Michigan — my alma mater, by the way — which has spent nearly two decades trying to defend taking race into account, as one of many factors, in deciding admissions.
The university is governed by an elected board of regents, some of whose members have campaigned on their views for or against affirmative action. Opponents of what they call “racial preferences” tried but failed to elect enough like-minded regents to end the practice, so they proposed an amendment to the state constitution that says Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Voters approved the measure in 2006 by a wide margin.
This may sound reasonable, even admirable, but here’s the problem: With the amendment, voters changed the political process in a way that unfairly burdens racial minorities.
There was, after all, an existing process for influencing the university’s admissions policies. You could lobby the regents. You could run ads to pressure the board. You could campaign for board candidates who shared your views. You could run to become a regent yourself.
You can still do any of these things if you want to influence the university’s admissions policies in any other way — if you want, say, more places reserved for “legacy” applicants who are the sons and daughters of alumni. But if you want to influence the board in favor of race-sensitive admissions, you have only one option: an onerous, expensive and almost surely futile attempt to amend the state constitution yet again.
As Sotomayor wrote , “The effect . . . is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had.”
If stacking the deck in this manner is acceptable in university admissions, why not in voting rights? Sotomayor’s dissent recounted the long history of attempts by majorities to change the political process in order to deny racial and ethnic minorities the chance to achieve their goals. The court has recognized a duty to protect the process rights of minorities — until now, apparently.
Once Sotomayor dispensed with the other side’s legal arguments, the court’s first Hispanic justice — she is of Puerto Rican descent — gets personal.
Race matters, she wrote, “for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.”
She went on, “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?’ . . . Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’ ”
To young people of color, the Roberts court replied: Maybe you don’t.
By: Eugene Robinson, Opinion Writer, The Washington Post, April 24, 2014
Someone reading about the Supreme Court’s decision upholding Michigan’s ban on affirmative action — and by extension similar measures passed by voters in California, Texas, Florida and Washington — might develop the misimpression that affirmative action is on the wane. In fact, it’s alive and well: Public and private colleges routinely give preferential treatment to children of alumni.
If you have kids, or plan on having them someday, you know that acceptance rates at elite colleges are at historic lows. Stanford led the stingy pack, admitting but 5 percent of applicants, with Harvard and Yale trailing close behind at 5.9 percent and 6.3 percent respectively.
For “legacies,” the picture isn’t nearly so bleak. Reviewing admission data from 30 top colleges in the Economics of Education Review, the researcher Michael Hurwitz concluded that children of alumni had a 45 percent greater chance of admission. A Princeton team found the advantage to be worth the equivalent of 160 additional points on an applicant’s SAT, nearly as much as being a star athlete or African-American or Hispanic.
At Harvard, my alma mater, the legacy acceptance rate is 30 percent, which is not an unusual number at elite colleges. That’s roughly five times the overall rate.
The disparity is so great it makes the most sense to conceptualize college applications to elite colleges as two separate competitions: one for children whose parents are legacies, the other for children whose parents aren’t.
Admissions officers will hasten to tell you that in a meritocracy many legacies would get in anyway. Let’s pause to consider the usefulness of the term “meritocracy” in a system where the deck is stacked at every level in favor of rich, white students before conceding the premise. It’s surely true that many children of alumni are brilliant, hard-working and deserving of a seat at a top college. That’s quite different from saying the system is fair. In 2003, Harvard’s admissions dean said that the SAT scores of legacy admits were “just two points below the school’s overall average.” These are students who have enjoyed a lifetime of advantage. We’d expect them to have outperformed nonlegacies, at least by a bit, and yet they’ve done slightly worse.
Reasonable minds can differ on the morality and wisdom of race-based affirmative action. Where I teach, at John Jay College of Criminal Justice, which is about as egalitarian as institutions come, I’ve seen firsthand what the data show: College is a ticket out of poverty, and exposing young men and women to diverse classmates and role models raises the ceiling on what they believe is possible for themselves. That said, I acknowledge the desire for a colorblind, meritocratic society as an honorable position. But how can anyone defend making an exception for children of alumni?
One needn’t have a dog in this hunt to be troubled by legacy. It’s disastrous public policy. Because of legacy admissions, elite colleges look almost nothing like America. Consider these facts: To be a 1 percenter, a family needs an annual income of approximately $390,000. When the Harvard Crimson surveyed this year’s freshman class, 14 percent of respondents reported annual family income above $500,000. Another 15 percent came from families making more than $250,000 per year. Only 20 percent reported incomes less than $65,000. This is the amount below which Harvard will allow a student to go free of charge. It’s also just above the national median family income. So, at least as many Harvard students come from families in the top 1 percent as the bottom 50 percent. Of course this says nothing of middle-class families, for whom private college is now essentially unaffordable.
These facts will trouble any parent of modest means, but it’s time to recognize this as an American problem. Together with environmental destruction, social inequality is the defining failure of our generation. The richest .01 percent of American families possess 11.1 percent of the national wealth, but 22 percent of American children live in poverty.
There are only two ways this gets better. One is a huge reformation of the tax structure. The other is improved access to higher education. Few investments yield a greater return than a college degree. Education has great potential to combat inequality, but progress simply isn’t possible if legacy persists.
To justify this practice there would need to be, in lawyer language, a compelling justification. There is none. Elite colleges defend legacy as necessary to fund-raising. It isn’t. Neither Oxford nor Cambridge nor M.I.T. considers legacy. Their prestige is intact, they attract great students, and they have ample endowments. Moreover, technology has transformed fund-raising. Presidential candidates raise money through grass-roots campaigns; colleges can, too.
Legacy evolved largely as a doctrine to legitimize the exclusion of Jews from elite schools. It endures today as a mechanism for reinforcing inequality, with particularly harsh consequences for Asians, and fundamentally contradicts the rhetoric of access in which elite colleges routinely engage.
Harvard, Yale, Stanford, Princeton and Columbia collectively have endowments of about $100 billion. They have the means to end this abhorrent practice with a stroke of a pen and the financial resources to endure whatever uncertainty ensues. Just a hunch, but I think the economically diverse students admitted to these great colleges would be successful and generous to their alma maters, not in the hope of securing their child a place in a class, but out of genuine appreciation of a legacy of equal access.
By: Evan J. Mandery, Professor at John Jay College of Criminal Justice; Op-Ed Contributor, The New york Times, April 24, 2014
Yesterday, the Supreme Court upheld a provision of Michigan’s constitution that bans the state or any of its subdivisions from “grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor’s dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far.
The case for upholding Michigan’s amendment, which was adopted through the ballot-initiative process, seems compelling at first glance. Even if one agrees that affirmative-action programs are generally constitutional, it surely cannot be the case that the Constitution requires states or the federal government to adopt affirmative-action policies. Had Michigan never adopted affirmative-action policies or had the legislature repealed them, this would presumably not raise a serious constitutional question. So why wouldn’t the citizens of Michigan be able to make the same policy choice? “There is no authority in the Constitution of the United States or in this Court’s precedents,” Kennedy asserts in the plurality opinion, “for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In the most relevant precedent, the Court ruled in 1976 that a Washington constitutional amendment that banned the use of bussing to integrate schools violated the 14th Amendment because it “impose[d] substantial and unique burdens on racial minorities.” Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor makes a powerful argument that this and related precedents require the Court to strike down the Michigan initiative.
The core of the Court’s “political-process” precedents, Sotomayor observes, is that minorities have access to the state’s democratic procedures. The Constitution “does not guarantee minority groups victory in the political process,” but 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, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.” Reallocating power in the way Michigan does here therefore raises serious equal-protection concerns.
Sotomayor’s dissent cites a landmark Kennedy opinion: Romer v. Evans, in which the Court struck down a Colorado initiative forbidding the recognition of sexual orientation as a protected category under existing civil-rights laws. Sotomayor observes that Romer “resonates with the principles undergirding the political-process doctrine.” The Court forbade Colorado from preventing a disadvantaged minority access to the state and local political processes, even though states are not constitutionally required to pass civil-rights laws.
Sotomayor’s dissent also offers a useful defense of the political-process doctrine and its strong roots in the 14th Amendment. Starting with the famous fourth footnote of Carolene Products in 1938, the Court has held that state actions that burden minorities should be subject to heightened judicial scrutiny. When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.
It is instructive that in their concurrence Justices Antonin Scalia and Clarence Thomas mock the influence of Carolene Products: “We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.” This is grimly ironic, given that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts less than five years ago. With respect to Carolene Products, conversely, what matters is not merely the footnote in one opinion but the fact that it conforms to the 14th Amendment, and was elaborated on in many subsequent cases. Several of these precedents were the political-process rulings that were supposed to control the outcome in yesterday’s case. As both Scalia from the right and Sotomayor from the left argue, it’s hard to deny that these precedents have been silently overruled, even if the plurality says otherwise.
The consequences of Michigan’s constitutional amendment illustrate the ongoing relevance of the Court’s equal-protection precedents. As the dissenters point out, the percentage of African-American students getting degrees from the University of Michigan was the lowest since 1991 after the amendment passed. In addition, the percentage of racial minorities in freshman classes at Michigan’s flagship university has steadily declined—even as racial minorities comprise an increasing percentage of the state’s population. This does not in itself prove that the Court was wrong to uphold it, but it does show that the elimination of affirmative action is unwise, and at a minimum the Supreme Court should show deference to elected decision-makers who determine that it is necessary.
By: Scott Lemieux, The American Prospect, April 23, 2014
A new Michigan law forcing individuals or businesses to purchase costly additional insurance to cover abortion care went into effect Thursday.
The law applies to private health plans in the state, including plans secured through the state health exchange and employer plans. If a person does not purchase the additional insurance, then they will be forced to pay out of pocket for the procedure if they need to access abortion care. As it stands, very few insurance plans cover abortion care; the new law will likely further drive down the already tiny fraction of abortions covered by health insurance in the state, potentially putting the procedure financially out of reach for many people.
There were approximately 23,000 abortions performed in Michigan last year, and barely 3 percent of them were covered by insurance.
As Jessica Valenti at the Nation rightly pointed out at the time the measure first passed the Republican-controlled Legislature, eliminating insurance coverage for abortion will have devastating consequences for all people who need abortion care, which is essential and basic medical care. There is no hierarchy of “good” abortions or “bad” abortions. But pro-choice lawmakers in Michigan and much of the national coverage has focused on what many see as the most extreme feature of the law — its lack of exceptions for survivors of rape or incest.
The lack of exceptions has led many to call the law “rape insurance.”
At the time of the vote, Senate Majority Leader Gretchen Whitmer, a Democrat, said she was raped as a college student and couldn’t imagine having to face the additional trauma of such a law had she gotten pregnant. She asked her “Republican colleagues to see the face of the women they’re hurting by their actions today.”
“Thank God I didn’t get pregnant as a result of my own attack,” she continued, “but I can’t even begin to imagine now having to think about the same thing happening to my own daughters.”
By: Katie McDonough, Assistant Editor, Salon, March 13, 2014