A Wall Street Journal op-ed acknowledged the constitutionality of race-conscious law, breaking from the traditional narrative of right-wing media that touts a non-existent “colorblind” Constitution, but incorrectly described the issues in a new Supreme Court case that will examine state bans on affirmative action.

In the case Schuette v. Coalition to Defend Affirmative Action, the Supreme Court has decided to examine whether amendments to state constitutions that ban race-conscious equal opportunity programs violate the 14th Amendment of the U.S. Constitution by impermissibly rigging a state's political process. Contrary to editorial board member James Taranto's description of the case in a recent WSJ op-ed, Schuette is not properly understood as "an opportunity to revist" the constitutionality of affirmative action in higher education admission policies.

Grutter v. Bollinger, which reaffirmed the permissible use of race-conscious admissions in furtherance of the educational benefits of diversity, is indeed at risk in the as-of-yet unreleased decision of Fisher v. University of Texas. Schuette, on the other hand, examines what political means of prohibiting race-conscious admissions are acceptable under the U.S. Constitution and what means unconstitutionally manipulate state political processes to the detriment of persons of color and others who support the use of race-conscious affirmative action. 

Affirmative action bans in state constitutions allow other admission factors - such as legacy status, musical ability, athletic promise - to continue to be lobbied for and against in the normal state political process. Any subsequent advocacy on the merits of race-conscious admissions, however, must be decided by re-amending the state constitution. Under Supreme Court precedent, the selective removal of race-conscious policy decisions from the normal political processes to a higher level (such as an amendment to a state constitution) violates the federal equal protection clause.

Pursuant to this “political restructuring” doctrine, ACLU and NAACP litigators - joined by leading constitutional scholars such as Laurence Tribe and Erwin Chemerinsky - challenged the ongoing campaign to prohibit the use of race in college admissions through state ballot initiatives. In Schuette, because Michigan selectively removed the consideration of race-conscious admissions to a more removed and difficult political process, the U.S. Court of Appeals for the Sixth Circuit struck down this ban on affirmative action.

Even though he conflated the issues in Fisher and Schuette, however, Taranto did refreshingly explain that conservative Justice Anthony Kennedy is the missing fifth vote from the other conservative justices' apparent desire to strike down the constitutionality of all race-conscious law. This admission is regrettably usually absent in right-wing media's incessant clamor for the "Constitution's imagined command of colorblindness." Indeed, not only does right-wing media continuously claim or imply that race-conscious policy is somehow in violation of this non-existent “colorblind” Constitution, they completely ignore the fact that such a position is ahistorical in addition to bad law.

Such misleading rhetoric also obscures the consequence that prohibiting the use of constitutional race-conscious admissions policies rolls back efforts to integrate higher education. It appears that for some, such as Ward Connerly, the main proponent behind affirmative action bans, this is precisely the point. As reported by the San Francisco Chronicle:

A Detroit Free Press poll this fall showed that white men were the only large voting bloc in which a majority supported the [Michigan affirmative action ban] and that African Americans overwhelmingly opposed it. Michigan's population was 80 percent white, 14 percent black, 2.3 percent Asian American and 3.8 percent Latino of any race in 2005, according to U.S. Census estimates.

Jennifer Gratz, co-leader of the Michigan campaign with Connerly, said she and other white Michigan residents feel they have been the victims of discrimination in hiring and college admissions as public bodies tried to recruit more black and other minority students or employees. Gratz said supporters of affirmative action bans believe all people should be treated according to their character and accomplishments rather than their skin color.

Connerly calls affirmative action “state-sponsored discrimination.”

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Connerly says ethnic diversity is not necessary for a good education.

“It is not essential that black kid sits next to white kid,” he said, diminishing the importance of the U.S. Supreme Court's 1954 school desegregation ruling known as Brown vs. Board of Education. “That's where we went wrong with Brown vs. Board.”