Heather Mac Donald: The Supreme Court’s Schuette Decision Exposes the Absurdity of Racial-Preferences JurisprudencePosted: May 8, 2014
For City Journal, Heather Mac Donald writes: In a victory for common sense, the U.S. Supreme Court ruled in late April that voters could require colorblind admissions to their state’s public universities without running afoul of the Constitution. Several of the justices arrived at this seemingly self-evident conclusion via tortured routes, however, and Justices Sotomayor and Ginsburg rejected it. Their opinions reveal the counterfactual condition of race jurisprudence today, while also unwittingly providing a rationale for knocking down academic racial preferences entirely. Sotomayor’s long, impassioned dissent opens a disturbing window into her racialized worldview and offers an example of what might be called the black-studies-ification of elite discourse.
[See Heather Mac Donald’s book: The Burden of Bad Ideas: How Modern Intellectuals Misshape Our Society at Amazon.com]
The roots of the recent decision, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights . . . By Any Means Necessary (BAMN), were planted in 2003, when the Court upheld the use of racial admissions preferences by the University of Michigan’s law school. Preference opponents responded with a ballot initiative to amend the state constitution, prohibiting Michigan’s government from discriminating against, or according preferential treatment to, any individual or group based on race, gender, or national origin. The campaign over the initiative, Proposal 2, was highly visible and hard-fought, focusing primarily on the measure’s effect on admissions to the state’s public universities. Proponents of preferences, led by BAMN, argued that Proposal 2 would drastically reduce minority enrollment at the University of Michigan and that it was a thinly veiled excuse for racism. Voters rejected those arguments and passed the initiative with 58 percent of the vote in 2006. BAMN then sued to overturn Proposal 2 as unconstitutional. The group lost in federal district court but won in the Sixth Circuit U.S. Court of Appeals. Proposal 2’s backers appealed to the Supreme Court.
Schuette has been ridiculed by preference opponents for posing the question of whether the equal protection of the laws—i.e., race neutrality—violates the Fourteenth Amendment’s guarantee of equal protection. But even BAMN did not have the temerity to make so illogical a claim. Rather than arguing that a ban on racial preferences was unconstitutional per se, BAMN was forced to take up an arcane line of Supreme Court precedent that turned its complaint against Proposal 2 essentially into a quasi-voting-rights claim. It was the locus of decision-making, not the content of Proposal 2, that was unconstitutional, BAMN alleged. The proponents of Proposal 2 had denied minorities the ability to participate meaningfully in the political process, the group said, by resolving the question of racial preferences through a state ballot initiative, rather than at the university level.
This odd line of attack derived from the Supreme Court’s little-known “political process” doctrine, stemming in part from a 1982 case, Washington v. Seattle School Dist. No. 1. The Seattle City Council had passed a law requiring school busing to integrate local schools. In response, Washington state voters passed an initiative banning busing as a response to anything other than deliberate school segregation. Hearing a challenge to that initiative, the Supreme Court ruled that by moving the question of busing from a local to a state level, busing opponents had erected barriers to minorities’ right to political participation and had made it harder for them to defend their interests in the political arena, therefore denying them the equal protection of the laws…(read more)
Heather Mac Donald is a contributing editor of City Journal and the Thomas W. Smith Fellow at the Manhattan Institute.
- SCOTUS Gets Schuette Right (personalliberty.com)
- Schuette v BAMN – The Supreme Court and Affirmative Action, again! (lgspolitics.wordpress.com)
- Supreme Court Declares States Can Bar Racial And Other Preferences In University Admissions (jonathanturley.org)
- A consideration of race (sotu.blogs.cnn.com)
- Statement on Supreme Court Case Schuette v Bamn (aaanet.org)
- Schuette.v. Bamn. – US – (2014) (counseltown.wordpress.com)
- Schuette v. BAMN and the Contradictions of Justice Sonia Sotomayor (pjmedia.com)
- Cutting The Ties That Blind (racialicious.com)
- Holder Praises Sotomayor’s Dissent in Schuette (nationalreview.com)
- Eric Holder’s Disparate Impact Obsession (dailycaller.com)