The tyranny of the majority won. Access to college for African Americans and Latinos suffered another major defeat. Instead of surveying the destruction of opportunity that is occurring at this very hour, the Supreme Court cowered behind a purist reading of the Constitution and upheld the 2006 decision by Michigan voters to ban affirmative action in higher-education admissions.
The decision upheld the right of white voters to continue to roll back the clock.
The ballot initiative was sought by anti-affirmative action forces still smarting over the Supreme Court’s 2003 decision that upheld the use of race as one of many diversity factors at the University of Michigan law school. Michigan is 80 percent white, and ban supporters undoubtedly assumed they could tap into enough resentment over affirmative action to win.
They were correct. The initiative won with 58 percent of the vote. In a CNN exit poll, Proposal 2, as it was called, received 64 percent white support (including 70 percent among white men). It mattered not that African Americans voted against the proposal by nearly a 9 to 1 margin.
The ban was overturned in 2012 by the 6th US Circuit Court of Appeals, which found it to be an unconstitutional violation of the Equal Protection Clause. In writing for the majority, Judge R. Guy Cole said the ban placed unique burdens on black students. An obvious one is that students seeking to take advantage of legacy admissions can lobby the admissions committee, university leadership, and the school’s governing board to consider a parent’s alumni status in admissions decisions. But a black student wishing race to be considered — most affirmative action policies were enacted to remedy historical discrimination and disadvantage — had only one option: “amend the Michigan Constitution — a lengthy, expensive, and arduous process.”
The Supreme Court, by a 6-2 vote, ignored those burdens. While hemming and hawing that the case had nothing to do with the merits of affirmative action itself, Justice Anthony Kennedy said he could find in Michigan’s ban “no infliction of a specific injury” that should force a court to “restrict the right of Michigan voters.”
Justice Sonia Sotomayor saw plenty of injuries in a blistering dissent, saying the court majority overlooked “over a century” of people of color being shut out of Michigan’s universities, ended by a relatively brief period of affirmative action in the late 20th century. She said the court “fundamentally misunderstands the nature of the injustice” of Proposal 2. Even though it is abundantly clear that diversity will not be achieved through race-neutral policies, Sotomayor said the courts is allowing the voting majority in Michigan to stack the political process “permanently.”
Citing a litany of past voting and education-rights injustices, Sotomayor said a key effect of Michigan’s law is to assure, as Cole wrote, a system where a white legacy candidate has a world of options to get into college while “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.”
That system is in full effect. Since Michigan’s ban went into effect, the percentage of black students at Michigan and Michigan State have dropped to a respective 5 percent and 7 percent — even though blacks have grown to be 19 percent of the state’s college-age residents. In California, the 1998 voter-approved ban on affirmative action has resulted in a halving of black students at the University of California Berkeley down to 2 percent and virtually frozen Hispanic enrollment at 11 percent — even though the state’s percentage of college-age Hispanics has soared to nearly 50 percent.
Florida has done a better job of increasing Hispanic enrollment despite the affirmative action ban at both the University of Florida and Florida State, but black enrollment at Florida State has fallen by nearly half, down to 7 percent, even though black students are 24 percent of the college-age population, a much bigger disparity than before the ban.
The deck was already stacked against black students without the bans. Cole recognized that, and said the Michigan law was clearly a case where “the majority has not only won, but has rigged the game to reproduce its success indefinitely.” By overturning Cole’s reasoning, the Supreme Court continues to rig the game.