“Ignoring Precedent And Denying Reality”: The Court Stacks The Deck Against Minorities
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
“End College Legacy Preferences”: The Deck Is Stacked At Every Level In Favor Of The Rich
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
“Serious Equal-Protection Concerns”: Justice Sotomayor’s Powerful Defense Of Equality
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
“Punish Them At The Polls”: Michigan’s Sweeping “Rape Insurance” Law Goes Into Effect
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
“Unlimited Spending”: This Is How The Koch Brothers Plan To Win The U.S Senate
The Koch brothers* are hiring.
You’ll find job listings for campaign staff positions in Koch-funded groups in Arizona, California, Colorado, Florida, Louisiana, Minnesota, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Texas and Virginia. Some of the ads call for experts in social media channels such as Facebook, Twitter, Pandora, YouTube, Google, and OutBrain to effect a strategy that’s both agile and overwhelming.
And you’re already seeing $20 million worth of TV ads from the Koch-funded group Americans for Prosperity (AFP) targeting incumbent senators in Alaska, New Hampshire, North Carolina and Louisiana for supporting Obamacare. Similar ads are now up Michigan and Iowa, where veteran Democrats Carl Levin (D-MI) and Tom Harkin (D-IA) are vacating their Senate seats.
Now Democrats are sounding the alarm to their donors in a moment that’s reminiscent of the note the Obama campaign hit with an email in which the president said, “I will be outspent.”
“Democrats need money at this early stage in order to fight back against the limitless spending from the Kochs,” Guy Cecil, the executive director of the Democratic Senatorial Campaign Committee, told The New York Times. “The limitless spending from the Kochs means we need Democratic donors to step up in a bigger way immediately.”
Republicans need six seats to take over the U.S. Senate and the Kochs are trying to expand the map to put even the states that twice voted for President Obama in play. And they’re building on a model that they perfected in 2010 when right-leaning groups hammered the president and Democrats in Congress for a year over the “failed” stimulus before it even had a chance to work.
With Democrats holding virtually every swing seat in the nation after the landslide of 2008, they defended on all fronts and avoided trying to nationalize the race, even though the choice was made for them. As the midterm election hit, in the midst of the worst job market in 60 years, Republicans won more elected offices than they had at any time since before the Great Depression.
The right tried to reprise this strategy in 2012 with dismal results. But in an off-year election, without President Obama on the ballot and with Obamacare disapproval soaring in red states, there’s a clear opportunity to use health care reform to define Democrats early.
And that’s what the Kochs are doing wherever they see an opportunity.
With former Michigan Secretary of State Terri Lynn Land polling better than expected against her likely Democratic opponent Rep. Gary Peters (D-MI), especially in polls that under-sample African-Americans, Michigan presents such an opportunity. Land supported Rep. Paul Ryan (R-WI) in his plan to privatize Social Security and Medicare in previous budgets, but she’s unlikely to produce the sort of gaffes that cost Republicans Senate seats in Missouri, Indiana, Nevada and Rhode Island.
Land recently touted outside groups supporting her run right as AFP’s ad targeting her opponent began a $1 million three-week run — even though collaboration between candidates and these groups is illegal. Wink, wink.
Democrats also hope to expand the Senate map to Georgia — where Obama only lost by 8 percent without spending a dime in the state. Michelle Nunn, the daughter of the state’s former beloved senator Sam Nunn, will likely be the Democratic nominee and could easily end up facing Rep. Paul Broun (R-GA) who was voted “Most Likely to be the Next Akin.” His primary opponent, Rep. Jack Kingston (R-GA) — who recently said that children would benefit from working — was a close second to Broun.
While Karl Rove is actively trying to influence Republican primaries to ensure the most electable candidates win, Americans for Prosperity retains its Tea Party credibility by aiming its fire only at Democrats and sticking to the issue that will preoccupy the right for the third national election in a row — Obamacare.
So if you’re in one of those 13 targeted states, expect to hear about #fullrepeal of a law that’s been on the books for almost four years now on TV, Facebook, Twitter, Snapchat, email and anywhere the Kochs can find you.
*The Kochs go out of their way to obscure how they spend the millions they invest in Republican politics. Americans for Prosperity is a 501(c)(4) social welfare group that doesn’t have to release the names of its donors — though we know David Koch helped to found the group. These non-profits, which are limited in the amount of resources they can apply to political efforts, were the subject of the controversy where the IRS used political keywords to identify conservative and progressive groups for extra scrutiny. Big groups like AFP and Karl Rove’s Crossroads GPS avoided such scrutiny, until recently, at least.
By: Jason Sattler, The National Memo, January 15, 2014
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