Opinion

The Supreme Court is not done with affirmative action yet

It's hard to imagine an affirmative action program the Roberts court would uphold

This week, the Supreme Court upheld a Michigan initiative that forbade public educational institutions — as well as all state employers and contractors — from considering race as a factor in admissions or hiring, even in the context of affirmative action programs. The direct impact of Schuette v. Coalition to Defend Affirmative Action is likely to be quite limited, but the decision fits into a pattern for the Roberts court that portends a future in which state institutions have little or no leeway to enact affirmative action programs.

Tuesday's case dealt with the question of whether Michigan's voters had violated the equal protection rights of minorities by amending the state's constitution in 2006 to forbid affirmative action. On its face, it might seem like a fairly easy issue to resolve; after all, virtually nobody suggests that states are required to enact affirmative action programs. As Justice Sonia Sotomayor's powerful dissent explained, however, there is significant precedent supporting the claim that such changes to the state's political process violate the 14th Amendment. Nevertheless, a fractured 6–2 majority found that Michigan's amendment was legal.

On one level, the repercussions of the decision will be modest. It makes clear that existing constitutional amendments banning affirmative action are constitutional, but given the Supreme Court's current conservative tilt few observers would have expected it to rule otherwise. The court's imprimatur may encourage other similar state bans in the future, but then again it's unlikely that any such initiatives have been inhibited by the long-shot chance that they would be struck down by the Roberts court. This decision does not forbid the states from adopting affirmative action; it merely affirmed that one way of banning them is constitutional.

The more interesting question going forward is whether states will retain any latitude to consider race in college admissions and in other state actions. As it happens, the current precedent in affirmative action cases was set by two 2003 cases involving the University of Michigan. In Gratz v. Bollinger, the high court ruled that the school's undergraduate affirmative action program (which gave minority applicants a fixed boost) was unconstitutional. However, in Grutter v. Bollinger, the court upheld the Michigan Law School's affirmative action program, which considered race in a holistic manner. Under the controlling precedent, therefore, states are permitted to consider race in admissions as long as it comes as part of the individual consideration of an applicant, rather than an explicit formula.

However, whether a majority still exists to support Grutter is unclear. Justice Sandra Day O'Connor, the swing vote in Grutter, was replaced by the substantially more conservative Samuel Alito. In the 2007 case Parents Involved v. Seattle School District, four members of the court seemed to indicate that all forms of affirmative action by the state were unconstitutional. Justice Anthony Kennedy's concurring opinion, however, argued that the problem of educational inequality "defies so easy a solution," holding the programs being considered unconstitutional but refusing to create a blanket prohibition. Given an opportunity to overrule Grutter in 2013, the Supreme Court punted the case back to the lower courts without changing the law.

But while the state of the law appears to be up in the air, it's also hard to imagine an affirmative action program that the current court would uphold, even if it is unwilling to explicitly rule all such programs unconstitutional. If so, this is unfortunate. The constitutional arguments for forbidding all affirmative action programs are notably weak, and the consequences of such a doctrine would be highly pernicious.

They can be seen in the effects of the constitutional amendment upheld this week by the Supreme Court — and they are stark. Justice Sotomayor's dissent cited the brutal statistics about the first class to have graduated after Michigan banned affirmative action: "The proportion of black students among those attaining bachelor's degrees was 4.4 percent, the lowest since 1991; the proportion of black students among those attaining master's degrees was 5.1 percent, the lowest since 1989; the proportion of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 1993; and the proportion of black students among those attaining professional school degrees was 3.5 percent, the lowest since the mid-1970s." The University of California also saw substantial declines in minority enrollment after affirmative action was constitutionally banned in the state.

This is a bad, and unnecessary, outcome. In Parents Involved, Chief Justice Roberts concluded with an unconvincing, ahistorical tautology: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." As Sotomayor retorted in her dissent in this week's case, "[T]he 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."

The court may have been right to permit Michigan's voters to ban affirmative action. It should show similar deference to states that determine that taking race into account is necessary to maintaining a diverse student body and redressing the stubborn persistence of racial discrimination in American society.

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