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Supreme Court Upholds Michigan Ban on Affirmative Action

In a 6-2 vote, the Supreme Court has upheld Michigan's ban on affirmative action in college admissions. The full opinion in Schuette v. Coalition to Defend Affirmative Action is here.

The opinion holds that Michigan voters had the right to amend their constitution to prohibit public universities from considering race in admissions decisions.

Justices Sotomayor wrote the 58 page dissent, joined in by Justice Ginsburg. The Chicago Tribune discusses the dissent here. [More...]

The opinion pertains to a 2006 Michigan constitutional amendment approved by 58% of the state's voters. The amendment banned the use of racial preferences in university admissions. It states:

[state colleges and 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.”

Justice Kennedy wrote in his opinion:

“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

... "It is important to note what this case is not about," he wrote at the outset of his opinion. "It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education."

According to the Wall St. Journal, eight states, including California, have ended affirmative action since 1996. The decision does not affect states without such a ban or states where affirmative action is used. The Detroit Free Press puts it this way:

The opinion doesn't end affirmative action — it just very strongly upheld the right of voters to ban it.

The New York Times has an editorial on the decision, Racial Equality Loses at the Court . It agrees with Justice Sotomayor's statement, “Our Constitution places limits on what a majority of the people may do,” she wrote, such as when they pass laws that oppress minorities." and adds:

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.

I think it's a bad decision. Why should voters of a state that is overwhelmingly white be allowed to restrict the decisions of a state university as to minority admissions? How can minorities ever gain equal standing under such a scenario? As Justice Sotomayor wrote:

“The Constitution does not ...give the majority free rein to erect selective barriers against racial minorities.”

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  • Display: Sort:
    Just a thought (5.00 / 2) (#33)
    by CaptHowdy on Fri Apr 25, 2014 at 05:51:52 PM EST
    Not everyone who has reservations about AA is by default a racist.

    Let's try this (5.00 / 2) (#35)
    by NYShooter on Fri Apr 25, 2014 at 10:45:17 PM EST
    from another angle. But, first, let me state that the whole racism, affirmative action, equality/inequality, fairness thing is a very, very difficult and complicated conundrum. Simple, and, or, rigid statements/positions certainly don't help. When I hear one-liners like, (paraphrasing) "oh, so you're going to end discrimination by discriminating?" it just means to me that this person is so completely invested in his/her position that asking him/her to keep an open mind seems pointless. Unfortunately, way too many on-line discussions are of this type, and, rarely, if ever, are any minds changed, or consensus reached. But, I've found (for example) ExcitableBoy to be a pretty smart, clear thinking guy, so, WTF, let's give it a try, anyway. (And, we all know Squeaky is brilliant, no matter how hard he tries to hide it sometimes.)

    I'll go first, O.K? Since we all know that racism, discrimination, and, inequality are bad things in a democracy, and, if we're ever going to come close to achieving a fairer, more egalitarian society this problem must be solved. Unfortunately, we're not dealing with mathematics, or, chemistry, where, if we only find the missing number, or, symbol, the equation is solved, and, everyone's happy. "Inequality," however, will never be solved, at least, not 100% as in math, or, chemistry.  

    So, I hope that we can agree that as difficult and ingrained our problem is it must be solved, or, at least solved to the greatest degree possible. And, I hope we can also agree that we're a long way from reaching that goal. We tried passing laws eliminating discrimination, but, 100 years of Jim Crow proved how silly that hope was. Nope, if you put perverse, unyielding racism in a ring with Laws, Racism wins every time. And, if a democratic, humane society can't score a knock-out victory over racism with Laws, we'll just have to do it on points. It's not quite as satisfying as a knockout, but, it may be as good as we're going to get.

    Now, getting back to the issue of Affirmative Action in our schools, specifically, as it relates to colleges/Universities. Let me remind everyone how well (snark) anti-discrimination laws worked in the case of Police/Fire, and, other, historically, "White Male Only" Departments. No matter how many laws were passed, and, no matter how disproportionate the prevailing population was, white males, overwhelmingly, filled the employment rolls. Judges became more, and, more frustrated by this seemingly intractable situation. "How can you say you're an equal employment entity when you're your new hires are all white men?" Employment managers cried back, "we're doing everything in our power to hire more females, and minorities, but, it's not our fault that only white men can pass the entry tests."

    I won't make this post any longer than it's gotten to be by going through all the machinations that were forced onto those stubborn, dug-in employers. Somehow they (were forced to) figure out how to make fair, duty specific tests, and, as they say, the rest is history. Females and minorities entered those, once forbidden, fields, and, have performed as admirably, dutifully, and, bravely as the once all-white-male employees that came before.

    Now, I've just scratched the surface in discussing this topic. My main point is that relying on the innate goodness of our people is a no-brainer; it ain't gonna work. Yes, it will have to mandated, and, also yes, a small fraction of deserving people will be denied their first preference. In horse racing they put weights in the saddles to even out the burden each horse will carry; in employment, anti-discriminatory practices (not just wishes) must be in place........and, our kingdom has not collapsed. The law refers to "de facto de juro." In layman's terms, "wishes don't make it so."

    One Mo Time: Affirmative Action ain't perfect, but, until someone comes up with something better, it's as good as you're going to get.

    And, it's a whole lot better than what came before.

    I don't understand. (none / 0) (#1)
    by lentinel on Tue Apr 22, 2014 at 11:21:24 PM EST
    If race can be used as a criterion for admissions, why is it to be assumed that this power would not be used to exclude rather than include minorities based on race?

    Examples of Exclusion? (none / 0) (#2)
    by squeaky on Wed Apr 23, 2014 at 08:47:48 AM EST
    How would minorities be excluded under affirmative action? Any ideas?

    The ballot initiative was sought by anti-affirmative action forces still smarting over the Supreme Court's 2003 decision that upheld the use of race as one of many diversity factors at the University of Michigan law school. Michigan is 80 percent white, and ban supporters undoubtedly assumed they could tap into enough resentment over affirmative action to win.

    They were correct. The initiative won with 58 percent of the vote. In a CNN exit poll, Proposal 2, as it was called, received 64 percent white support (including 70 percent among white men). It mattered not that African Americans voted against the proposal by nearly a 9 to 1 margin.

    Boston Globe: Supreme Court Upholds  Tyranny of the Majority


    Parent

    Asian Americans (5.00 / 1) (#3)
    by Cody on Wed Apr 23, 2014 at 09:21:35 AM EST
    Well, the obvious example would be Asian Americans, who are (generally speaking) admitted in lower numbers (ie, excluded) under affirmative action schemes than they would otherwise be.  (And in particular were admitted in lower numbers under the Michigan scheme.)

    This is also, I think, the largest hole in Sotomayor's argument that "The Constitution does not ...give the majority free rein to erect selective barriers against racial minorities."  Because is this is so, then it seems like it would follow that this dooms affirmative action, since it is a selective barrier against some racial minorities.

    (As others have noted, Asian American's were not mentioned once in any of the opinion's issues in this case.  An odd omission, I think.)

    Parent

    The Statistics in California (none / 0) (#4)
    by RickyJim on Wed Apr 23, 2014 at 12:02:25 PM EST
    In California, Asians make up about 11 percent of the college-age population. Yet 36.2 percent of freshmen admitted to the University of California are Asian, making them the largest racial group overall in the UC system.

    Latinos are the second biggest racial group, surpassing whites for the first time this year. They make up 28.8 percent of the freshman class. Whites are in third place, making up 26.8 percent of the freshmen class. "Among 15- to 19-year-olds in California, 49.4% are Hispanic, 29.2% are white," The Wall Street Journal reports, and "6 percent are blacks," who represent 4.2 percent of the incoming UC class.

    See the Atlantic article on the Sotomayor brief.

    Personally, I can't see the argument that the US Constitution dictates that a school must give preferential admission to any particular minority, even though it might be good public policy.  Isn't Sotomayor's argument similar to the argument for reparations?  

    Parent

    Wow (2.00 / 1) (#6)
    by Slado on Wed Apr 23, 2014 at 12:06:14 PM EST
    Same link seconds apart.

    To answer your question Yes.

    Her argument is a feelings argument.   It's OK to violate the constitution in order to right racial wrongs.  Can't agree.


    Parent

    You really ought to take some time (5.00 / 3) (#13)
    by NYShooter on Wed Apr 23, 2014 at 07:03:01 PM EST
    and try to comprehend what the issues are before spouting out racially bigoted, Limbaugh one-liners.

    "It's OK to violate the constitution in order to right racial wrongs."

    Maybe, the single dumbest comment posted here, yet.

    Do you even understand that, after centuries as slaves, and, indentured servants to a ruling class, the oppressed people, immediately after being "freed"....on paper, may not be able to, effectively, compete with their oppressors right off the bat?  Or, maybe, in your "free market utopia," a burglar, after a lifetime of stealing, and, the, being caught should simply be able to say, "sorry, I won't do it again, "now, let's compete."

    Parent

    Can't speak for Slado (none / 0) (#21)
    by ExcitableBoy on Fri Apr 25, 2014 at 10:28:54 AM EST
    but I understand the issue just fine. Attempting to rectify the past, and present, racial inequalities in this country is a noble idea. But there's a word for discrimination in pursuit of a nobe idea: discrimination.

    You just can't hold some people back because of the color of their skin in order to benefit other people because of the color of their skin. You have to find another way.

    Parent

    Really? (none / 0) (#22)
    by squeaky on Fri Apr 25, 2014 at 12:06:15 PM EST
    You just can't hold some people back because of the color of their skin in order to benefit other people because of the color of their skin. You have to find another way.

    I am quite certain that you would scream about any measure that would attempt to balance the inequality in America.

    Your comment is empty, imo.

    Parent

    You're wrong about me (none / 0) (#23)
    by ExcitableBoy on Fri Apr 25, 2014 at 01:19:07 PM EST
    I wouldn't scream about any measure to balance the inequality; that's ridiculous. I understand the fallout from our racial history is ongoing. I'm not a "slavery ended a long time ago, get over it" person.

    But the essence of AA boils down to racial discrimination in order to remedy racial discrimination, and I think that's illegal. Either we have equal protection under the law in regards to race, or we don't. Kids have a right not to be hindered in college admission because of the color of their skin.

    Parent

    Really? (none / 0) (#24)
    by squeaky on Fri Apr 25, 2014 at 01:40:18 PM EST
    So the only way to balance the scales is to give the advantaged parties the same advantages given to the disadvantaged?

    Winds up more heavily weighted on the side of the already advantaged, imo

    Any money or funds spent on balancing the scales would have face the same argument you put forth.

    Were all people treated the same from the start, your argument would have merit. But then we would not need to balance anything, would we?

    Parent

    First (none / 0) (#29)
    by ExcitableBoy on Fri Apr 25, 2014 at 03:52:22 PM EST
    who cares what coulda/woulda/shoulda been the case from the start. Yes, slavery bad, Jim Crow bad, generational inequity bad. Let's just stipulate the obvious and move on to the pertinent discussion.

    Secondly, to NOT discriminate against whites (the advantaged you're speaking about) is not to GIVE them an advantage. You're not bestowing any special privelege on them by not screwing them; you're just not screwing them.

    Also, you're not automatically advantaged by being white. There are plenty of dirt-poor white kids from all over the country who are not masters of the universe or part of the club due to their whiteness, popular theory notwithstanding. So they can be the first in their family to even try to attend college, overcome whatever adversity they face in their lives, work their butts off, and they can be told sorry, we've got to pass you over for this other person who may be terribly disadvantaged due to the ravages of racism, or possibly the child of parents who have managed to benefit tremendously despite this history, or even be the child of parents who came from another country entirely, and didn't even suffer the inequity of American racism? This is to say nothing of Asians, who seem to have also been the designated losers of AA (though I've seen some stories that say this isn't true). If true, are you OK with them as collateral damage? As I said, it's not simple.

    But these other things aside, the main problem is how to help the victims of our racial history, and regardless of how you feel about me, I take this seriously and am very concerned with it. I'd start with the money. It's illegal to discriminate on the basis of skin color, but not on the basis of your bank account. Use a combination of financial factors, history of higher education in the family, etc. Get creative. Use a set of conditions that will give you the greatest ability to helf African Americans while not focusing on skin color, and hurting others unfairly.

    Parent

    White Victims? (5.00 / 1) (#30)
    by squeaky on Fri Apr 25, 2014 at 04:49:03 PM EST
    White discrimination? Really this thread is not the place to argue about the poor white kids who are getting put out on the street because of Affirmative Action.

    Affirmative Action is working, except in Michigan and other states who have banned it.

    White people want to get rid of it. White people who hold the reigns of power in America do not want black people share the power. That is called racism, and it is alive and kicking.

    And it is not racial history it is current events. I am glad that you take it seriously, but it seems that you feel that black people should not be given any advantage when it comes to college admission. And as far as it being illegal to discriminate on the basis of skin color, I assume you are arguing that white people are being discriminated against and that is illegal.

    What a load.  

    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.


    Parent
    So (none / 0) (#31)
    by ExcitableBoy on Fri Apr 25, 2014 at 05:21:50 PM EST
    if I feel it's wrong to remedy discrimination by discriminating, and want to find another way to accomplish the same goal by non-discriminatory means, I'm just trying to keep the black race down? Wow. Wish I could say I'm shocked, but it's just typical.

    And why ISN'T this the thread to talk about poor white kids getting screwed by AA? They just don't count? And again, Asians (or any other races) aren't addressed at all. That's OK, I'm sure you think I don't REALLY care about them at all. You apparently don't.

    I wouldn't know anything about white people who hold the reins of power; I'm not one of them. I won't mention any of the multi-gazillionaire white dudes who are very much devoted to AA, helping the downtrodden, etc. You're like John Belushi talking about the Germans bombing Peal Harbor; you're rolling.

    Racism is alive and kicking? Thanks for pointing that out, I had no idea. Next you'll be telling me the blockbuster news that the sun rises in the east and sets in the west. I was hoping we could dispense with the obvious.

    You're right, I don't feel that that black people should be given any advantage when it comes to college admission BASED ON THE COLOR OF THEIR SKIN, AT THE EXPENSE OF PEOPLE WITH OTHER SKIN COLORS. I want to find non-racist ways to achieve the same goal.

    Parent

    OK (5.00 / 1) (#34)
    by squeaky on Fri Apr 25, 2014 at 09:09:43 PM EST
    if I feel it's wrong to remedy discrimination by discriminating, and want to find another way to accomplish the same goal by non-discriminatory means,

    The Affirmative Action policy is to offset discrimination against black people. Colleges can set their admission requirements to reduce or eliminate black people from getting admitted without breaking the law.

    Racism is subtle, and endemic. Affirmative Action addresses discrimination that is legal.

    "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."



    Parent
    If it helps (3.67 / 3) (#32)
    by CaptHowdy on Fri Apr 25, 2014 at 05:49:46 PM EST
    I understand what you are trying to say.  Even agree with most of it

    Parent
    A "feelings" argument??? (5.00 / 2) (#38)
    by christinep on Sun Apr 27, 2014 at 11:29:36 AM EST
    Fascinating!  Perhaps, slado, you might want to acquaint yourself with legal history ... especially, the merging of courts of law and equity.  IOW, more than a few hundred years ago in our English forerunner in legal structure, the understanding and practice and implementation of law evolved from a rigid (and often inhumane) separation of law and equity to promote both in the same court.

    The true jurist seeks to do equity.  Striving to attain that goal is most noticeable in the great cases that define our country.  Those cases -- e.g., Brown v. Board of Education -- are not considered great because of a constricted and constipated application of law.  The great cases, dear slado, interpret the Constitution, our Constitution that reflects our deepest values.  And, guess what:  Values, even legal values, are not mathematical.  

    Lastly, your comment appears to follow the classic "emotional" response of that club that would almost instinctively respond to