In the wake of the Roberts Court's latest attack on the constitutionality of race-conscious law, right-wing media are mischaracterizing the decision and Justice Sonia Sotomayor's dissent in a dishonest attempt to frame civil rights precedent as "racial discrimination."
On April 22, the Supreme Court ruled in Schuette v. BAMN, a badly split opinion in which the Court's five conservatives rejected long-established equal protection law under the Fourteenth Amendment to uphold Michigan's voter-approved ban on affirmative action. Right-wing media immediately began misinforming about the case, ignoring the serious consequences it could have for minority rights in the United States. By effectively overruling the "political process" doctrine, which forbids setting up a separate and unequal tier of political participation for a disfavored minority, the conservative justices reopened the door to the rigging of political systems, previously disallowed because of its negative impact on communities of color.
NRO continued its misinformation campaign about Schuette in its April 22 editorial, claiming that affirmative action is itself a form of prohibited racial discrimination. The editorial went on to call Sotomayor's dissent in Schuette "legally illiterate and logically indefensible" and "offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law." To bolster the claim that Sotomayor is preoccupied by "ethnic-identity politics," the editors whistled to the 2009 right-wing media smears that the justice was a racist because she once referred to herself as a "wise Latina." From the NRO editorial:
In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan's Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to "oppress minority groups." By outlawing racial discrimination, she argued, "a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities."
Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn't go the NAACP's way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan's voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they "changed the rules in the middle of the game." Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described "wise Latina" on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
NRO's description of the Supreme Court's affirmative action precedent is not even close to being accurate. At issue in Grutter v. Bollinger, decided in 2003, was not "whether the state should be allowed to engage in racial discrimination," it was whether the University of Michigan should take race into account as one of many factors in a holistic and individualized admissions process. The Supreme Court ultimately upheld the use of affirmative action in this context not as a tool for discrimination, but because "student body diversity is a compelling state interest in the context of university admissions," a constitutional goal it originally recognized 35 years ago in Regents of the University of California v. Bakke.
Under this doctrine, affirmative action policies are never permitted to use race as an inflexible tie-breaker in admissions considerations. It can only be used as one factor among many -- a "preference" no more or less than any other.
The editorial's analysis of Schuette is similarly wrong -- no one was arguing that "the state should be required to engage in racial discrimination," as the blog also claimed. In 2006, voters in Michigan approved a state constitutional amendment that not only repeated existing bans on racial discrimination, but also banned affirmative action -- the recognition of race in the admissions policies of its public universities. Unlike NRO, the language of the ballot initiative recognized the distinction between affirmative action and racial discrimination, specifically and separately prohibiting both.
Because this ban on affirmative action was not pursued through state officials (who supported the universities' race-conscious admissions policies), the amendment had the perverse effect of preventing minorities and women from fully participating in the political process. Any other group seeking to lobby the state's public universities for improved admissions standards in the future -- such as children of rich donors or legacies -- are free to petition the university directly, but women and minorities are now tasked with overturning a state constitutional amendment. The plaintiffs in Schuette were not seeking "preferential" treatment -- they were seeking equal treatment of the law and equal access to systems of change, based on decades-old Supreme Court precedent.
This ignorance of civil rights law was echoed by NRO columnist John Fund, who also displayed a fundamental misunderstanding of the history of affirmative action in this country. In an April 23 column, Fund argued that "many Americans -- regardless of race -- are increasingly exhausted by what Chief Justice Roberts declared in 2006 was this 'sordid business, this divvying us up by race.'" He further complained about Sotomayor's use of the phrase "race-sensitive admissions" in her dissent in Schuette, claiming "[s]upporters of affirmative action are now signaling similar weakness. What was called 'racial quotas' in the 1970s and has been referred to as 'affirmative action' since the 1990s is giving way to a new term: 'race-sensitive admission policies.' The language shift is telling -- race-based preferences are losing intellectual, judicial, and political support."
But racial quotas have been illegal since 1978. People no longer use the phrase "racial quotas" not because it's fallen out of fashion, but because racial quotas have been prohibited in education admissions processes for decades. Moreover, Fund's attack on Sotomayor's "language shift" is bizarre. The term is not new: "race-conscious admissions policies" (or "race-sensitive") has been the Supreme Court's synonym for affirmative action since Bakke was decided in 1978 and through every single subsequent Supreme Court affirmative action case. Fund's assertion that voters of color support these affirmative action bans is also misleading. As former Department of Justice official William Yeomans explained, "The people of Michigan approved the referendum by a vote split along racial lines; whites overwhelmingly supported it and African Americans overwhelmingly opposed it. The white majority voted to deny minority applicants a benefit that the Supreme Court had declared lawful and Michigan's universities wished to continue. Referenda are rarely kind to minority rights."
But despite the fact that affirmative action bans like the one upheld in Schuette have had a significant impact on black student enrollment and have led to racist incidents and racial tensions on campus, Fund is apparently tired of this "endless fixation on race that inevitably brings its own racial discrimination."
NRO was not alone in its dishonest framing of affirmative action as a form of so-called reverse racism. On the April 22 edition of Fox News' The Kelly File, guest Brit Hume argued that "people now have understood that...it's racial preference, and it's a form of racial discrimination." Elsewhere, conservative talk radio host Mark Levin ranted on April 23 that affirmative action "is racism," arguing that it "violates [former Supreme Court Justice John Marshall] Harlan's dissent in Plessy v. Ferguson" that famously and wrongly claimed "our Constitution is colorblind." Levin went on to say "we have no control over our skin color, we are Americans, all of us...they keep dividing us along this line or that line, it's un-American."
This colorblind reference is an old and ahistorical trope of the right, and one that Justice Antonin Scalia repeated in his Schuette concurrence. What Levin and others consistently fail to acknowledge is that Harlan's dissent in Plessy is wildly racist and not colorblind at all. As has been repeatedly explained by many but evidently ignored by the likes of Levin, Harlan's dissent explicitly praised white supremacy -- "the dominant race in this country" -- that Harlan deemed would "continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty." Harlan's "colorblind" dissent also warned "there is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race."
It is strange, though, that for a group so apparently dedicated to eliminating "preferences," right-wing media have largely avoided a discussion about admissions policies that favor wealthy whites.
Many universities still give admissions advantages to children of alumni -- so-called "legacy" admissions. According to The New York Times, "among legacy applicants for Princeton's class of 2015, 33 percent of those offered a spot were the children of alumni." And it wasn't just Princeton -- Harvard admitted about 30 percent of its legacy applicants, and Yale admitted between 20 and 25 percent. These "legacy preferences" can and should be considered a form of "racial preference," since those students are "overwhelmingly white and wealthy."
Unfortunately, right-wing media framing of affirmative action policies as "racial preferences" for minority students has consequences. The New York Times recently noted that without the false description of race-conscious admissions policies as a zero-sum form of "racial preferences," 60% of Americans support affirmative action.
But this confusion appears to be the goal. As Paul Waldman recently explained in The Washington Post, it "has come to dominate our thinking" about affirmative action. As Waldman put it, "in the real world, if hundreds or thousands of black students have their opportunities constrained because of a system that places obstacles in their particular path, then most of us shrug and say, that's just the way things are, and there isn't anything that can or should be done about it." But overthrowing race-conscious admission policies all of a sudden becomes the goal "if an affirmative action program should result in a single white student having to go to her second choice school." Then, says Waldman, "we must change the law, and move heaven and earth to make sure it never happens again."