Earlier this week, the Supreme Court handed down a long-awaited decision in Schuette v. Coalition to Defend Affirmative Action which upheld a voter-decided ban on race-conscious affirmative action in the state of Michigan. Followers of my blog know that I am passionate about the defense of affirmative action in this country, and have advocated strongly against Prop 107 in Arizona, and more recentily in favour of California’s proposed SCA5, a bill that would have repealed Prop 209 for California’s public university system.
Anti-affirmative action advocates are celebrating the Schuette decision as the final nail in the coffin of affirmative action. Anchors on Fox News are even hailing the Schuette decision as a victory for civil rights, the proverbial “Promised Land” of Martin Luther King’s “I Have a Dream” speech.
But, let me be clear: this is a spurious interpretation of Schuette, one that seems designed more to energize the anti-affirmative action base than to provide a clear and accurate summary of the Schuette decision.
Furthermore, while Schuette is certainly a setback for the affirmative action fight, the decision has far more general implications for minority rights in this country that should not be swept under the rug. In fact, the Schuette decision should be disconcerting not just to defenders of affirmative action, but to all minority groups (particularly people of colour): Schuette ultimately had only a minimal impact on the legal questions raised in the affirmative action fight, but its damaging impact on minority rights may be vast and still virtually unknown.
Here’s the back-story: in 2003, the Supreme Court handed down a decision in Grutter v. Bollinger — a case involving a Michigan law school — that reaffirmed the use of racial information in hiring or admissions decisions. SCOTUS stated unequivocably that this sort of affirmative action does not violate the Equal Protections Clause, provided that racial information is used narrowly and non-determinatively.
This landmark decision both reinforced the constitutionality of race-conscious affirmative action while providing a guideline for how it may, and may not, be used; it is this interpretation of the legality of race-conscious affirmative action that stands to this day. The Grutter decision reminded that racial quotas — establishing an a priori admission or hiring goal based on race — are illegal. It further established some guidelines under which racial information can be used: specifically, a candidate may receive additional consideration due to his or her race, but may not be admitted or hired predominantly or exclusively because he or she is a member of a particular race.
Consistent with Grutter, most institutions of higher education employ race-conscious affirmative action in compliance with this legal interpretation: although the details vary from school to school, in general candidates that meet a baseline score in grades and SATs are considered generally qualified for admission. Subsequently, these qualified candidates undergo a process called “holistic review” wherein they receive an internal score based on hundreds of weighted factors including race, gender, athletic ability, family income, legacy status, geographic location, declared major, essay strength, reference letter quality, AP credits, extracurriculars, and more. From this internal score, final admissions decisions are made.
In response to the Supreme Court’s decision in Grutter that race-conscious affirmative action can be legally practiced, Michigan and several other states — including California and Arizona — advanced voter referendums to amend state constitutions prohibiting race-conscious affirmative action. Those measures have all passed state-wide vote, typically with a majority of minority voters — including Asian Americans — voting to protect affirmative action and against the measures. However, even combined, these votes are not able to out-number the votes of the (predominantly White) mainstream.
In Michigan, passage of a voter referendum banning race-conscious affirmative action in the state triggered a challenge to the constitutionality of such a referendum. This case ultimately arrived before the Supreme Court in the form of Schuette vs. Coalition to Defend Affirmative Action, after a lower court agreed that a ballot measure could not be used to implement laws that would disenfranchise a community that holds a numerical minority of state residents.
After hearing arguments, SCOTUS sided with the state of Michigan in defending their ballot measure that prohibited race-sensitive affirmative action, and over-turned the lower court’s ruling. And while this results in a continued ban of race-sensitive affirmative action in Michigan, it’s more important to delve into why and how SCOTUS ruled they way it did.
Importantly, in their majority decision, the Supreme Court stated that their decision in Schuette neither established race-conscious affirmative action to be unconstitutional, nor to be a constitutionally-protected right. Thus, Schuette does not overturn Grutter or redefine the legality of affirmative action — in fact, on the topic of the constitutionality of race-sensitive affirmative action, SCOTUS largely passed the buck back down to the lower court without really weighing in, as it did earlier with Fisher.
This leaves the constitutionality of affirmative action as the status quo established in Grutter: narrow, non-determinative use of racial information through affirmative action in higher education admissions is constitutional and does not violate equal protection.
Schuette did nothing to change this.
The long-lasting impact of Schuette is instead on minority rights. In the majority decision, SCOTUS asserted (as summarized by The New York Times) “that policies affecting minorities that do not involve intentional discrimination should be decided at the ballot box rather than in the courtroom.”
Or, in short, if you are part of a minority group that depends upon affirmative action to help protect access to higher education for your community, you need to convince a majority of voters in that state — many of whom have a vested interest in minimizing your access to higher education through reduced competition for their own children — to vote with you.
There are two problems with this majority decision on the power of “majority decision”. The first is the assertion that only “policies involving intentional discrimination” are the business of the higher courts: yet, the Court has long recognized that “race-neutral” polices that superficially do not involve “intentional discrimination” are nonetheless discriminatory in outcome and require the courts to weigh in to protect the rights of affected minorities who are disproportionately disenfranchised (e.g. Yick Wo v. Hopkins, Jim Crow laws, etc).
Second, and more importantly, the majority decision appears to contradict the Court’s own opinion on Proposition 8 in California, which legalized same-sex marriage. SCOTUS heard an appeal to the ruling of district court judge Judge Vaughn Walker, who wrote in his decision on Prop 8:
An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.
In other words, a ballot measure can represent the will of the people, but should only withstand challenge if its impact on the rights of the minority are both not in violation of the Equal Protection Clause, and can further be supported by clear evidence in its favour. The Supreme Court did not challenge this decision.
Yet, the justices who penned the Schuette majority seem to have forgotten this week their earlier stance on Judge Walker’s words. The justices in the majority seem to be unaware, or unconcerned, that those who attack affirmative action do so based only on the same type of conjecture, speculation and fear — not scientific fact — that also characterized the fight surrounding Prop 8.
Instead, the majority justices ruled that — regardless of their flawed reasoning — a majority of voters have the right to vote en masse to disenfranchise minorities through banning of race-conscious affirmative action. This, despite the fact that scholars who study higher education are virtually unanimous in their support of proper race-conscious affirmative action; this, despite the fact that state-wide affirmative action bans have had a clear deleterious effect in obstructing minority access to higher education; this, despite the fact that no scientific evidence has been provided showing definitive evidence of affirmative action discriminating against White or Asian students; this, despite the fact that the Court has already established that race-conscious affirmative action does not violate equal protection.
Instead, the Court ruled that the impassioned pleas of minority groups, as well as the scholarly opinions of academics, can all be over-written by the obstinate and uncaring votes of the majority: a majority who may be voting in their own interest in reinforcing the limited access (and therefore reduced competition) to higher education that occurs by placing obstacles before underrepresented minority applicants. It is no longer necessary that the majority back up their ballot measures with some sort of legal or scientific rationale for limiting the rights of their minority neighbours; instead, the Courts have now agreed that conjecture, speculation and outright fear is once more sufficient in supporting laws created by popular vote that are discriminatory in practice, because “majority rules”.
The New York Times summarized the minority opinion written by Justice Sonia Sotomayor (which was co-signed by Justice Ruth Ginsburg):
[Sotomayor] said the initiative put minorities to a burden not faced by other college applicants. Athletes, children of alumni and students from underrepresented parts of the state, she said, remained free to try to persuade university officials to give their applications special weight. “The one and only policy a Michigan citizen may not seek through this long-established process,” she wrote, “is a race-sensitive admissions policy.” That difference, she said, violates the Constitution’s equal protection clause.
“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent.
Ultimately, this week’s decision in Schuette reinforces what we already knew: that the work of affirmative action defenders “on the ground” are — as they always have been — of critical importance. Clearly, we must redouble our efforts to educate and energize voters, dismantle myths, and encourage citizens to use their votes to protect affirmative action in the coming wave of new ballot measures that are sure to come. The ballot box, say the Supreme Court, will be our battleground. We must be ready.
But what worries me is the impact of Schuette elsewhere: could this decision embolden the numerical majority to pass more ballot measures that limit the rights of minorities? Will Schuette produce additional barriers to challenging discriminatory ballot measures that attack voting rights, reproductive rights, or other issues that are disproportionately felt within minority communities?
If a minority group cannot overcome a ballot measure through sheer numbers, and if we can now can no longer trust that the higher courts will intervene when this happens — one of the most important functions of the judicial branch — what avenues are there left to minorities to advocate for ourselves when our rights come under attack?
This country has had a long history of the majority voting to uphold laws that limit the rights of the minority. Throughout its history, the Court has been essential in protecting minorities from the uncaring, arbitrary, and sometimes disenfranchising consensus of majority rule; one might argue that this is its most important function. It was not the popular vote that emancipated slaves, eliminated racial quotas against immigrants, integrated schools and lunch counters, or protected voting rights for racial minorities.
Schuette was a bad, bad, bad decision from the Supreme Court this week, and not necessarily because of its effect on affirmative action. It was a bad decision for everybody in this country who — based on whatever aspect of their identity — stands apart from the majority.
If that’s you, then the Supreme Court just told you through their decision in Schuette that the Courts are that much less interested in protecting you.
