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College & Workforce Readiness Opinion

The Schuette Decision

By Rick Hess — April 23, 2014 4 min read
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Yesterday, the U.S. Supreme Court ruled 6-2, in Schuette v. Coalition to Defend Affirmative Action, that states have the right to prohibit higher education institutions from using race-based admissions policies. The Court affirmed that Michigan could require universities to use colorblind admissions policies.

A half-century ago, while championing the Civil Rights Act, Senator Hubert Humphrey insisted, “I will eat my hat if anyone can find language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion or national origin.” Well, they did, though Humphrey never followed through. In fact, racial quotas and race-based preferences--in employment, college admissions, and much else--became part of American life. One can respect the intentions of those who embrace racial preferences and yet believe that “this sordid business of divvying us up by race,” as Chief Justice John Roberts once put it, has been unhealthy and, over time, increasingly corrosive.

Now, this is an issue where so much has been written and said over the years, that the reactions and commentary all have a pro forma feel. There’s not much sense that a lot of minds are being changed. It’s just that a free people is going to react to and comment on a decision like this, because it’s what we do. So, that’s what I’ll do too.

Many in education will bewail the decision. I think that’s misguided. For what it’s worth, here’s my take.

First, it’s one thing for supporters of affirmative action to argue that the Civil Rights Act authorized racial preferences, despite the explicit pledges of its sponsors and the seemingly plain language of the 14th Amendment. I disagree with that take, but such is life. It strikes me that it’s another thing entirely for affirmative action supporters to suggest that the courts should prohibit states abiding by the plain wording of the 14th Amendment and the Civil Rights Act. And it’s heartening to see that Supreme Court heartily adopted that stance, while issuing a badly-needed victory for federalism.

Second, I ardently agree with Roberts’s 2007 formulation that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” As Rick Kahlenberg and plenty of others have long noted, universities have a plethora of ways to pursue socioeconomic diversity, and I’m all for institutions embracing intellectual, disciplinary, methodological, and cultural diversity (though, in my experience, few sincerely do--instead championing progressive pieties and simply announcing that those constitute diversity). I’m not sure how advantaging the children of African-American and Latinos--regardless of whether their parents are dermatologists or dishwashers--helps to create a more just or united nation.

Third, the whole business of racial preferences has forced us into moral contortions that have come to seem shockingly pedestrian. For instance, we look back in horror at the Jim Crow mindset that produced the “one-drop rule,” and its use to justify a bizarre and intricate system of segregation and racial oppression. Today, of course, that same “one drop” logic is routinely applied by colleges--with preferences accorded to this suburban student rather than her next-door neighbor solely because she can claim that this great-grandparent was a disadvantaged minority--and the self-proclaimed champions of social justice evince not a whit of discomfort.

Fourth, I was disappointed by the gracelessness of Justice Sonia Sotomayor’s dissent, finding it unfortunately typical of how readily many proponents of race-based policies dismiss those who disagree with their remedies for inequality. She thundered that judges “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.” I was heartened by Roberts’s unflinching response. He wrote, “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality.”

In a passage that needs to be read and recalled much more frequently in debates about K-12 and higher education, Roberts continued, “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

One way that citizens in a big, diverse country can find its way is to recognize the right of other citizens to live under different rules. Too often of late, in education and elsewhere, the smug and self-impressed have sought to impose their vision of the good on the nation. Both education “reformers” and “anti-reformers” have been plenty guilty of this in recent years. The result has been backlash and bitter fights over which murky path is the “best” way forward, as states or communities demand nothing more than the right to govern their own affairs.

The Schuette decision says that the voters of Michigan (and those in a handful of other states) have the right to ask colleges to not use racial preferences when making admissions decisions. I think this is the right decision. But either way, we’d all be well-served by Justice Roberts’s reminder that there’s little value in denying the integrity or reasonableness of those who disagree with you.

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