Race, diversity and the ballot box
Supreme Court says voters can decide
April 23, 2014
In 2006, Michigan voters approved a constitutional amendment prohibiting state universities and colleges from giving applicants an edge because of their race or gender. On Tuesday, the U.S. Supreme Court said that ban is OK.
Seven states have similar bans. But the use of racial preferences in college admissions is widespread in the other 42 states, and Tuesday's ruling doesn't mean they'll have to change their ways. It simply recognizes that voters have the right to decide whether to allow (or require) schools to grant special consideration to groups that might otherwise be underrepresented in their enrollments.
Michigan has been front and center in the battleground over how to promote diversity in higher education.
In 2003, the Supreme Court struck down the flagship University of Michigan's undergraduate admissions policy, which awarded minorities an automatic 20 points out of 100 needed for acceptance. At the same time, it upheld the law school's admissions policy, which considered race among many factors.
That ruling didn't sit well with residents who felt advantages granted to one demographic group are inherently unfair to the rest. In 2006, voters approved Proposal 2, which says public universities and colleges "shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin." The proposition won the support of 58 percent of Michigan voters.
The amendment was immediately challenged on constitutional grounds. A federal court upheld it; the 6th U.S. Circuit Court of Appeals struck it down. The Supreme Court reversed the appellate court in a 6-2 decision — notable in that it didn't follow the narrow 5-4, conservative-liberal divide often found on the court.
Justice Elena Kagan recused herself. Justice Stephen Breyer, an appointee of President Bill Clinton, joined the majority even as he defended programs that use race as a factor to achieve diversity. "The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity," Breyer wrote in his concurrence. "But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs."
In a dissent, Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg) said the decision harmed "historically marginalized groups."
Attorney George Washington, who argued the case against the ban, was more blunt. "It is today's Plessy v. Ferguson ruling," he said. "The Supreme Court has made it clear they want to repeal the gains of the Civil Rights movement."
Michigan voters deserve more credit than that. Requiring a colorblind admissions process is not an automatic rejection of the goal of diversity. Michigan voters demanded that the universities find another way to achieve it. They are not the only public universities to be given that challenge.
"Where states have prohibited race-conscious admissions policies, universities have responded by experimenting with a wide variety of alternative approaches," Justice Anthony Kennedy wrote in Tuesday's opinion. "The decision by Michigan voters reflects the ongoing national dialogue about such practices."
Racial quotas and bonus points aren't the only ways to promote opportunity across demographic lines. Admissions policies can favor students from low-income families or from neighborhoods or high schools that send few graduates to college. Personal accomplishments and hardships have always factored into decisions about which students to accept.
It's less efficient than giving someone 20 points for checking a box. The flip side is that students who are accepted are likely to be a better fit for the college that admits them, which in turn increases the chance they'll succeed once they enroll.
Michigan voters have made it clear that they don't want to use racial preferences to diversify their public universities. A University of Michigan spokesman said Tuesday that the school has already brought its policies in line with Proposal 2 and remained "committed to the goal of a diverse, academically excellent student body." The Supreme Court and the citizens of Michigan are correct — there are plenty of ways to do that.