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Supremely Mistaken About Affirmative Action

A strike against truly equal access

Marc H. Morial | 5/14/2014, 11:09 a.m.
Marc H. Morial calls Michigan's strikedown of Affirmative Action a loss for true equality.
Marc H. Morial

In a disturbingly lopsided 6-2 vote, the United States Supreme Court once again became a willing accomplice in the recent onslaught of attacks on 60 years of civil rights progress.

Less than a year after it effectively dismantled the Voting Rights Act of 1965, the Court ruled on April 22 that voters may ban race as a factor in college admissions at public universities.

The Court’s decision curbed affirmative action and undermined a landmark 2003 ruling that affirmed the use of race-sensitive admissions policies at the University of Michigan Law School because of a compelling interest in fostering diversity in higher education.

In 2006, opponents of that ruling rallied around and passed Proposal 2, an amendment to Michigan’s constitution that gave voters the right to supersede elected university trustees and the right to ban the consideration of race as one of many factors in the admissions process.

It’s important to note that this ban only singled out race. Other selective factors, such as alumni status, athletic achievements, and geography remain in place. A federal appeals court subsequently ruled that Prop 2 violated the Equal Protection clause of the 14th Amendment, rendering it unconstitutional. With their recent ruling on Schuette v. Coalition to Defend Affirmative Action, a majority of the Supreme Court’s justices allowed the Michigan amendment to stand.

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Stephen Breyer joined Justice Anthony Kennedy in concurring in the judgment. Having worked on the case when she was Solicitor General, Justice Elena Kagan recused herself. The two dissenting votes were cast by Justices Ruth Ginsberg and Sonia Sotomayor, the Court’s most reliable civil rights defenders.

Sotomayor’s written dissent is an exceptionally scholarly, eloquent, and impassioned argument in defense of affirmative action. She methodically discredited the majority’s legal justification for its decision by citing several previous cases where the Court overturned attempts to change rules in ways that were detrimental to minority voters. She also pointed out that the Supreme Court bears an obligation to right historical wrongs and to expand educational opportunities for those who have traditionally been locked out.

“Race matters,” she wrote, “because of the long history of racial minorities being denied access to the political process (and) because of persistent racial inequality in society — inequality that cannot be ignored and that has produced stark socioeconomic disparities.”

Mindful of Michigan’s shameful history of segregation in higher education and of a significant decline in minority enrollment and graduations since Prop 2 took effect, Sotomayor concluded:

“The effect of [the Court's ruling] 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 and that they might never have absent that policy.”

We may have lost this affirmative action battle. But as long as there are voices as clear and strong as Sonia Sotomayor’s on the Supreme Court, I’m confident that in the end, equal opportunity, equal protection and equal justice will prevail.

Six other justices made clear how far from over the fight for civil rights remains in 21st-century America. Sotomayor shouldn’t need to remind her colleagues what the world looks like beyond their chambers. Yet she does.

“As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society,” the first Latina on the Supreme Court wrote in her dissent.

We all need to sit up now.

Marc Morial is the president and chief executive officer of the National Urban League.