The name of the Supreme Court’s latest case involving university admissions describes the battle lines: Schuette, Attorney General of Michigan v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. When the Court found for Schuette, headlines declared the decision a landmark ruling against affirmative action. But technically, the Court did not retreat from its prior holdings: race sensitivity is still a constitutionally permissible criterion when weighing the applications of similarly qualified candidates.
The case addressed a challenge to Article I, Section 26, of the Michigan Constitution, which altered the decision-making capacity of the regents and trustees of the state’s public university system. Section 26 took away those boards’ ability to use otherwise constitutionally permissible race-sensitive criteria for admissions—i.e., a backdoor way of banning affirmative action in the state. Schuette was also a broad capitulation to an old notion of states’ rights, allowing localities to opt out of federal equal-protection measures designed to dismantle segregation. Following this ruling, states can merely override those measures, one by one. The bottom line? What is expressly permissible as a matter of the US Constitution is now forbidden in Michigan. Not only that, it has removed affirmative action in Michigan from the democratic process. Where once these policies were negotiated through elected university boards, requiring a degree of popular will, Section 26 has ended discussion with a blanket ban.
The university boards can still consider all sorts of other admissions factors. Your father wants to underwrite a chair in Old Church Slavonic poetry? Welcome to the class of 2018! Your great-grandmother’s cousin was an alumna? Walk on in! You’re an athlete? Here’s your scholarship—just don’t try to unionize, ha ha ha!
But consider another scenario. You have one place to fill and two applicants—a white kid from Grosse Pointe, and a black kid who has risen from the ashes of Detroit’s segregated, postindustrial dystopia to achieve the same scores. Put on the blindfold! We don’t see color here. According to Section 26, it’s unlawful to weigh the black kid’s distinct experiences because that would constitute either an act of discrimination against the majority white population or a grant of preferential treatment for minorities.
This matter of discriminating against the majority is something that the more conservative members of the Court have dwelled on in the past. Yet as Justice Sotomayor points out in her dissent, majorities—by definition—need no protection, because they can vote down policies contrary to their interests. What they ought not be able to do, she argues, is structure the process so that one group is burdened, as here, with no option but silence.
In Schuette, Justice Kennedy, writing for the majority, held that the Supreme Court will not strike down state laws that bar government decision-makers from considering an otherwise legal option. This decision imposes an inane double bind that makes remedying all sorts of equal-protection claims impossible. Sure enough, since the opinion was published, Attorney General Bill Schuette, the named appellant, has been pressing his appeal to reinstate Michigan’s ban on gay marriage with renewed relish.