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EDITORIAL: Affirmative Action Under Siege

5/7/2014, 3 p.m.
The United States Supreme Court is continuing its assault on affirmative action with its recent decision confirming the right of ...
Courtesy of supremecourt.gov

The United States Supreme Court is continuing its assault on affirmative action with its recent decision confirming the right of Michigan voters to deny students admission to college in the state on the basis of race.

Last week’s ruling caps more than a decade of upheaval in Michigan over affirmative action. In 1993, the Supreme Court struck down the University of Michigan’s undergraduate affirmative-action program because it added points for minority applicants is spite of the qualities they brought to the table. Meanwhile, the justices upheld the university’s law school program which made race one factor that helped determine an applicant’s eligibility for admission.

The six justices who sided with Michigan voters to prohibit admissions policies based on race in higher education, had different reasons for their positions, but this ruling is another stark reminder of how much the pendulum is swinging in the opposite direction on issues of race compared to the 1950s and ’60s.

There was a time when the Supreme Court could be depended on to consider the egregious disparities of race that have plagued this country for centuries and seek to protect the rights of minorities. Some experts talk about civil rights fatigue in the country and a conservative Supreme Court that asserts that America is now colorblind. Then there’s the notion embraced by Chief Justice John Roberts and others, that America has entered a post-racial period where the issues of race have dissipated.

As Roberts glibly explained in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And last year, when the Supreme Court struck down one provision of the Voting Rights Act he wrote that 50 years after passage of that legislation, things racially have changed dramatically enough to no longer necessitate the need for that provision and possibly the Act itself.

The Supreme Court has abrogated its role as the ultimate guarantor of equal justice and tossed out its judicial responsibility to minorities, and it has made it clear that non-whites must rely on their own efforts to correct obvious and hidden racial inequalities and seek redress elsewhere.

But as Justice Sonia Sotomayor so eloquently said in her searing dissent, race matters.

“In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination,” she said. “This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. 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. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

Need proof? While the proportion of college-age African Americans in Michigan has increased, there has been a 25 percent decrease in minority representation in Michigan’s public universities and colleges.

One doesn’t have to look too far to see an American history replete with an abysmal record of widespread and systematic discrimination and institutional racism. Yet the majority ignores the reality that while legal discrimination is gone, racism, inequity and racial bias continue to flourish. Affirmative action is merely a means to level the playing field.

Roberts calls the differences between the majority and minority honest differences of opinion. Whatever the reason, we are stuck with a Supreme Court that is either naïve or cynical when it comes to issues of racial justice.