How tangled does the judicial reasoning get when the subject turns to affirmative action?
In November 2012, the federal appeals court in Cincinnati voted 8-7 in striking down a Michigan constitutional amendment that bars affirmative action in admissions to public universities. The judges produced six separate opinions.
On Tuesday, the U.S. Supreme Court reversed the ruling of the appeals court. The 6-2 vote upholding the Michigan amendment generated five separate opinions.
As Richard Lempert of the Michigan law school noted on the Brookings Institution website last week, part of the fracturing involves “the dirty little secret of the jurisprudence of race … where most judges feel free to enact their personal values into law.” Thus, it can be useful to return to first principles regarding affirmative action, back to what Lyndon Johnson described in June 1965.
“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair,” Johnson argued. He added that “we seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”
That isn’t a call for guaranteed or equal outcomes. Rather, Johnson wanted to achieve true equality of opportunity. It flowed logically that such a pursuit would evolve into affirmative action, such as weighing race as a factor, among many others, in the admissions policies of public universities.
In the Michigan case, the Supreme Court did not take direct aim at racial preferences in admissions. States remain free to adopt or reject such an approach. Yet, in writing the lead opinion, Justice Anthony Kennedy expands on the prevailing view of the court majority, that using race as a factor substitutes one form of discrimination for another, that no good can come from perpetuating the racial divide.
Kennedy and his colleagues press the concept of a colorblind country. That is a noble thought. More, much progress has been made against racism, the violent attacks on Freedom Riders five decades ago seemingly scenes from another country.
In her dissent, longer than the four other opinions combined, Justice Sonia Sotomayor shows what Kennedy and the others fail to see about the persistence of racism. She exposes as out-of-touch Chief Justice John Roberts famously stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
“Race matters,” she states powerfully and personally. She then cites the many ways it does, from states seeking to curb minority voting rights to the patterns of disparity in schools and housing. She echoes a friend-of-the-court brief, submitted by Richard Lempert and others, that points to research capturing such inequities as a white applicant much more likely to get a job interview than a black applicant with the same credentials.
Sotomayor details what has happened in Michigan since affirmative action has been banned. Minority enrollment at the University of Michigan has declined 25 percent. The proportion of blacks with bachelor’s degrees reached its lowest level since 1991. The share of blacks getting professional degrees? At its lowest since the 1970s.
The purpose in using race as a factor in admissions isn’t simply to open doors for minorities. The sound idea is that all of us benefit from a more diverse and integrated culture. The twin goals matter, and reveal the shallowness in suggesting a moral equivalence with the ugliness of the Jim Crow era.
This case had an Akron connection. In the 1960s, the City Council approved an ordinance ensuring equal opportunity in housing. Akron voters then overturned the law and approved a change to the city charter barring the council from implementing any future law dealing with housing discrimination without the approval of voters.
The Supreme Court rejected the charter amendment, citing a violation of the equal protection clause. Voters had put those seeking to fight housing discrimination in a rare bind, having to alter the city charter to achieve their goal, a big task that would not apply to most others seeking change in the city.
The court reaffirmed this “political process doctrine” in a Seattle case about school desegregation, establishing a reasonable limit on the power of the majority. It is this precedent the appeals court and Justice Sotomayor cited — and the high court majority pushed aside.
In approving the ban on affirmative action in university admissions, Michigan voters changed the rules in an identical way, leaving advocates of a race factor with the extra and heavy burden of collecting signatures, raising money and mounting a statewide campaign to amend the state constitution.
Or something less than the Johnson notion of “completely fair.”
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at email@example.com.