The Philadelphia Inquirer and the Schuette decision

As expected, the editors of The Philadelphia Inquirer were disappointed with the Supreme Court’s ruling in Schuette v Coalition to Defend Affirmative Action, Integration and Immigration Rights By Any Means Necessary (BAMN), but understood it just enough to dance around what the ruling actually was.

The 6-2 decision suggests a nation that no longer needs to directly address the vestiges of past discrimination, which have left minority communities poorer, sicker, and educationally deprived.

No, that’s not what it means. The ruling in Schuette very explicitly stated that the previous decisions allowing state schools to employ race-based considerations for Affirmative Action purposes remained in force:

(It) is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. 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.

The decision in Schuette concerns, directly, whether the voters have the right to decide the question in he first place, and, indirectly, whether race-conscious decision-taking must be a part of any plan to address the effects past discrimination. 1 In places where Affirmative Action plans which contain preferences or other methods to assist minority applicants, the ruling leaves those plans untouched.

The Editors continued:

That is not to say America hasn’t made progress since that sad period when no black person realistically expected to be treated according to the content of his character rather than his skin color.”

That’s a sadly amusing sentence, given that the programs the Editors want to see very explicitly discriminate on the basis of skin color.

But as Sotomayor so eloquently put it in urging her fellow justices to reconsider, “We ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.

I have somewhat less respect for the Justice who once stated that, as a “wise Latina,” she would reach better conclusions than a white male who hadn’t had her experiences, because, as a judge, she is supposed to apply the law, not set policy, but setting policy is exactly what she wished to do here. The political process in the state of Michigan reached a decision, by the most direct democracy there is — a question put to the voters — which stated that the state, including state colleges, would not discriminate on the basis of race; the (not so) wise Latina thought that her voice ought to outweigh the decisions of the voters.

Colleges give preferences to athletes, children of rich alumni, and others they want on campus. Why not do that for students still struggling to overcome past barriers to opportunity?

Some still can: colleges in states which allow Affirmative Action can, and private colleges anywhere can do exactly as the please. But that does not mean that every state, everywhere, must comply, and it does not mean that the public, either directly through the initiative process (as happened in Michigan) or indirectly, through their elected representatives, must choose to have race-conscious standards for anything.

A ruling against affirmative action suggests an ideal world that has yet to exist.

The boxed quote was visible, as a sidequote, only in the print edition yesterday morning,2 but it demonstrates the not-very-good thinking of the Editors: the ruling was not one against Affirmative Action, something the plurality decision directly stated was not an issue, but whether the democratic process allows states and other government entities to take decisions concerning what their policies will be. Justice Antonin Scalia wrote:

It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? . . .

Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?

Justice Scalia has it exactly right. The Court has, through some convoluted reasoning, and the applications of tests such as strict scrutiny, previously allowed things which the actual words of the Constitution explicitly prohibit.3 That it has become a muddled mess is hardly a surprise. And if we had had three more “wise Latinas” on the Supreme Court, we’d have had just what Justice Scalia said: a ruling which held that the Fourteenth Amendment prohibits what it explicitly requires.
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  1. Left unmentioned is whether states, cities or schools must address such concerns, or whether they may or may not choose to do so.
  2. The Philadelphia Inquirer, Thursday, April 24, 2014, page A-21.
  3. Thanks to Justice Sandra O’Connor and her attempt to be moderate, we have the twin cases of Gratz v Bollinger and Grutter v Bollinger, which tell us that racial discrimination is unconstitutional if it’s done too explicitly, too rigidly, but is acceptable if state institutions try to be subtle and sophisticated about it.

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