By THE EDITORIAL BOARD APRIL 22, 2014
A blinkered view of race in America won out in the Supreme Court on Tuesday, when six justices agreed, for various reasons, to allow Michigan voters to ban race-conscious admissions policies in higher education.
In 2003, the court upheld such a policy at the University of Michigan law school because it furthered a compelling governmental interest in educational diversity. Opponents of affirmative action moved to amend the state’s constitution to ban any consideration of race or sex in public education and employment. In 2006, voters passed the amendment by a wide margin.
Affirmative action supporters sued to strike down the amendment, arguing that by changing the rules of the game in a way that uniquely burdened racial minorities, the amendment violated the equal protection clause. A closely divided federal appeals court agreed.
You know, all proponents of affirmative action then had to do was what Ward Connerly and Co. had done in Michigan: persuade a simple majority of voters to repeal the amendment to the state constitution. How is that not equal protection?
In Schuette v. Coalition to Defend Affirmative Action, the Supreme Court reversed that ruling and allowed the amendment to stand. Among other things, the justices disagreed about whose rights were at issue: the minorities who would be affected by the ban or the majority of the state’s voters who passed it.
This is actually a massive issue in 21st Century jurisprudence: when the Constitution says "equal protection," does that really apply to white people? It's nice to see that notion got six votes on the Supreme Court, but it's crazy that it went all the way to the Supreme Court.
Justice Anthony Kennedy, writing for a three-member plurality, sided with the voters, who he said had undertaken “a basic exercise of their democratic power” in approving the amendment. He cautioned that the ruling took no position on the constitutionality of race-conscious admissions policies themselves. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
Not so, Justice Sonia Sotomayor responded in a stinging 58-page dissent. “Our Constitution places limits on what a majority of the people may do,” she wrote, such as when they pass laws that oppress minorities.
That’s what the affirmative action ban does, by altering the political process to single out race and sex as the only factors that may not be considered in university admissions.
While the Constitution “does not guarantee minority groups victory in the political process,” Justice Sotomayor wrote, “it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently.”
All that By Any Means Necessary has to do is do what Ward and friends did. But that's not equal enough for the Wise Latina. To her, all people are equal, but some people should be more equally protected than others.