Is Affirmative Action in the U.S. Dead?

By Lázaro Lima*

Photo credit: commonwealth.club / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

Photo credit: commonwealth.club / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

The U.S. Supreme Court’s decision two weeks ago to uphold a law that prohibits colleges from considering applicants’ race in the admissions process underscored U.S. conservatives’ power on the issue – but also the forceful vision of Justice Sonia Sotomayor.  In the decision of “Schuette v. Coalition to Defend Affirmative Action,” six out of the nine Justices supported Michigan’s “Proposal 2”; Sotomayor and one other opposed it, and Justice Kagan, who had worked on the case as President Obama’s Solicitor General, recused herself.  Ironically named “Michigan Civil Rights Initiative,” MCRI was passed in a state referendum with the support of 58 percent of Michigan’s voters in 2006.  It outlawed the use of all race considerations in public college admissions, resulting in a decline of 25-30 percent of the minority population at universities and colleges in the state.  The majority argued that “there is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”  They cited it as a case of respecting states’ rights and claimed that “it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

In a 58-page dissent, Justice Sonia Sotomayor made the case against the law, arguing that Michigan schools were within their rights and responsibilities to society to take reasonable steps to encourage minority presence on state university and college campuses.  She plaintively stated the obvious: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race and to apply the Constitution with eyes open to the unfortunate effects of racial discrimination.”  She wrote: “Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. […] And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.”

The U.S. debate on affirmative action has deep roots and will surely continue.  The Supreme Court decision – and Sotomayor’s candid and necessary assessment of race relations – came over 35 years after the Court in 1978 ordered a University of California medical school to admit a white man who claimed that affirmative action unfairly led to the rejection of his application.  The “Bakke Decision” outlawed racial and gender quotas and delimited “race” to the managerial interests of academic institutions and employers.  Historical accounts of affirmative action policies often trace back to President John F.  Kennedy’s Executive Order 10925 of 1961, which required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”  President Lyndon Johnson extended these mandates through the Civil Rights Act and with his own executive order.  But it was Sotomayor, decades later, who shined in her statement last month.  When she read her dissent from the bench, for the first time in her five years, her colleagues – who already had made up their minds – were not her intended audience.  Her audience was the democratic commons.

*Lázaro Lima is a professor of Latin American literature and Latino Studies at the University of Richmond, and a CLALS research fellow.

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