* Garces is an Assistant Professor of the Higher Education Program and Research Associate of the Center for Study of Higher Education at Penn State College of Education. Kidder is the Assistant Executive Vice Chancellor at UC Riverside. Orfield is the Professor of Education, Law, Political Science and Urban Planning and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles at UCLA.
Chief Justice Hughes famously said that a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Dred Scott, the Civil Rights Cases, Plessy, Korematsu—In these and other landmark race-related cases, dissenting Justices spoke eloquently to “the intelligence of a future day” in laying bare the errors in the holding and reasoning of the Court’s majority opinions.
Justice Sotomayor’s dissenting opinion in , joined by Justice Ginsburg, is both brooding and compelling in the way it speaks to an intelligence of a future day, a day when, “as members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”
We deeply regret the decision by the Supreme Court upholding Michigan’s ban on race-sensitive admissions as constitutional and overturning the Sixth Circuit’s en banc ruling that the referendum violated the federal constitutional guarantee of equal protection. On the heels of recent voting rights and campaign finance decisions—decisions that not only create enormous barriers but further weaken minority political power and increases the power of money—the Schuette ruling exemplifies how legal decisions can ignore the stark realities of our nation and the deep racial inequalities that continue to exist in America.
The reality in Michigan is that 64 percent of whites but only 14 percent of African-Americans (Michigan’s largest minority group) voted in favor of Proposal 2 in that state. And our research at the Civil Rights Project shows myriad educational inequalities in Michigan that corroborate Justice Sotomayor’s observation about the “simple truth that race does matter.” Michigan K-12 schools are some of the most racially segregated in the nation: over half (53 percent) of African-Americans in Michigan attend schools where less than ten percent of the student body is white. And contrary to Justice Roberts’ facile notion that race-conscious programs “do more harm than good,” Michigan’s ban on these policies caused the proportion of African-Americans graduating from the University of Michigan Law School to drop below three percent, the lowest percentage at the School since 1969.