* 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.
With race-sensitive admissions policies, the University of Michigan at Ann Arbor graduated more African-American freshmen—and at a higher graduation rate, no less—than the combined total for UC Berkeley, UCLA and UC San Diego with bans on such policies. As Justice Sotomayor correctly notes, for African-Americans, bachelor’s degrees, Master’s degrees, doctoral degrees and professional school degrees have all declined precipitously at the University of Michigan in the wake of the ban.
Institutions of higher education in Michigan wishing to address the ways in which race continues to matter in shaping students’ educational opportunities now face an enormous barrier forbidding them to do what they have concluded to be necessary for educational and social reasons—to overcome racial barriers and take actions that enrich their classes and their ability to adequately prepare the future leaders of the state and the nation. This decision hobbles institutions seeking diversity in the few states with bans similar to Michigan’s.
As Justice Sotomayor stated, the Schuette ruling “drains the Fourteenth Amendment of one of its core teachings” that protecting the right to meaningful political participation “must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing.” It is extremely difficult for relatively powerless minority communities to have the financial and other resources needed to make a serious effort to amend a state constitution. The Supreme Court had recognized that creating such an insurmountable barrier to considering positive civil rights policies violated principles of equal protection. There were very important precedents including one striking down the California proposition which would have prohibited fair housing laws and another overturning a proposition which would have prevented school desegregation in Washington State.
Schuette is another in a series by the current Supreme Court that are pushing the nation backward in terms of racial equity and interpreting away key civil rights precedents. In California, the decision means that the state's ban on race-sensitive admissions, which has so negatively affected public universities, will stand until and unless supporters of diversity and equal opportunity in higher education can marshal the resources to reverse Proposition 209.
This is a particularly urgent issue, of course, for one of our campuses (UCLA) had the largest number of applicants of any in the nation this year and is struggling against the odds created by proposition 209 to create the kind of diversity that helps students and future leaders of our state prepare to live and work and govern in a state where the substantial majority of students who are Latino, African-American and American Indian have too little access.
As individuals and as a society, we must remain committed to advancing diversity and equal opportunity in higher education and to support institutions of higher education that implement constitutionally permissible race-conscious admission policies to reduce inequality and enhance the prospects for degree attainment and future leadership contributions. To do so is to confront openly, rather than wish away, underlying inequalities and thereby help to secure a brighter and fairer future for entire communities and for American society.