May 09, 2014 by Kim Post
The April 22 U.S. Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action revived the longstanding debate on the controversial topics of race and affirmative action. In particular, it brought about an article in the May 2 edition of The Triangle that argued in favor of affirmative action, going against the majority ruling. I believe Brie Powell erred in her analysis of the court’s decision.
She gave the impression that the Supreme Court ruled a constitutional ban on race-based admissions discrimination to be legal on the basis that it is not necessary. She wrote, “We can’t wish away racial inequality just because we’re sick of the topic,” a position she also attributes to Justice Sonia Sotomayor.
The idea of a “postracial society” that Powell criticized seems like a straw man argument, because in fact, the court under Chief Justice John G. Roberts is well aware of the racial problems in the U.S. and the implications of affirmative action.
As Justice Anthony Kennedy wrote for the majority, the court’s earlier decision in Grutter v. Bollinger “acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States.” Indeed, earlier Supreme Court decisions have acknowledged the potential value of affirmative action policies. Diversity in universities has been established as a legitimate goal of government policy because it benefits all students, and under this reasoning, racial affirmative action policies that work toward this goal in a proper manner have been upheld.
So why did the majority of justices rule the way they did? It is not because the character of race in America has changed since they last addressed the matter of affirmative action. In fact, the merits of affirmative action are not truly relevant to the case.
Kennedy wrote, “The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”
Too often, discussions on Supreme Court decisions are tainted by politics, forgetting that the court’s task is to review legislation and not to prescribe it. This is the mistake Powell made in her article.
Sotomayor, in her dissent, instead built upon the precedent established in the 1982 case Washington v. Seattle School District. In that case, the court held that it violates the 14th Amendment’s Equal Protection Clause for a state to change its political process in such a way that it is harder for a racial minority than for others to seek political change.
Because Michigan’s constitutional amendment makes it harder for people in favor of affirmative action to effect change, Sotomayor argued, it uniquely harms the interests of minorities and is therefore unconstitutional. This was the same reasoning that the Sixth Circuit Court of Appeals applied when it ruled against Michigan.
That seems like a reasonable case on the face of it. However, Kennedy made a powerful argument for doing away with this earlier precedent. Not only was the language used in the Seattle decision too broad, but it also “does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.”
Kennedy’s primary point is that applying the Seattle precedent requires making assumptions about minorities’ political views, which runs the risk of stereotyping based on race, and he questions the government’s ability to sort people reasonably into racial categories in the first place: “Were courts to embark upon this venture, not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision, but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.”
In short, to equate a prohibition of race-based affirmative action with suppression of minority political influence, as Sotomayor did, requires stereotyping and other improper judicial actions. To me, this seems a logical conclusion because we do not call it discrimination when constitutional amendments ban any other practice — does the First Amendment discriminate against those in favor of censorship? Does the 13th Amendment discriminate against those in favor of slavery? Indeed, does the 14th Amendment discriminate against racists?
With the Seattle precedent removed, the 14th Amendment must be read more directly, namely that it simply prohibits government discrimination based on race. I must agree with six of our nation’s finest jurists, then, that it is unthinkable that Michigan’s own prohibition on racial discrimination could be illegal.
Kim Post is a copy editor at The Triangle. He can be contacted at [email protected]