The law was held unconstitutional last year by a panel of judges on the United States Court of Appeals because, in their view, the primarily white electorate was taking away from minorities the benefits of an admissions policy that supported racial diversity in the state college and university system.
On appeal to the U.S. Supreme Court, the attorney representing the state argued that “it does not violate equal protection (under the Constitution) to require equal treatment.”
The court’s liberals, led by Justice Sonia Sotomayor, expressed concern that voters had taken away the “one tool” that could bring real diversity to their campuses, and that upholding the law would “bring back segregation.”
Justice Ruth Bader Ginsburg, a longtime proponent of equal rights, echoed her concerns, pointing out that the court has applied elevated scrutiny to laws that take away a “protection for minorities.”
These are hardly new issues for the court. In the 1970s, Allan Bakke brought suit against the Regents of the University of California claiming that he had been denied entry into medical school, while minorities with lower grades and scores were admitted. The court, in a 5-4 vote, sided with Bakke, but the decisive opinion was written by the late Justice Lewis Powell, who concluded that “race can be a factor, but only one of many to achieve a balance.”
In the years since, most colleges and universities have found ways to ensure diversity by using race as “one factor” — but not the only one. Nearly 20 years after Bakke was decided, however, voters in California passed a referendum — Prop 209 — that prohibited affirmative action in college admissions, and the elite schools in the UC system have struggled with various admissions standards in order to bring some diversity to their campuses. It’s still a controversial issue in California — as it clearly was in Michigan.
It’s a tragedy, really. Nearly 60 years after the Supreme Court decided in Brown v. Board of Education that separate but equal was inherently unequal, striking down what is called “de jure” segregation, one might have thought you wouldn’t need affirmative action to have diversity on a college campus. The students attending college today are the grandchildren of those who courageously entered all-white classrooms in the 1950s. We should not need any form of preference to achieve diversity.
But it isn’t so. We know it isn’t so. Private universities practice affirmative action because without it classrooms would not be diverse — particularly in selective colleges and universities.
I certainly understand the frustration that students feel when they are told, or come to understand, that their scores would be high enough to secure admission — if they were black or Hispanic. Most colleges and universities are sophisticated enough never to say that quite so explicitly. But students get it.
At the same time, it is also a tragedy if our classrooms don’t reflect the real diversity of our communities. Every year in my undergraduate class on Law and Society, I ask my students whether any of them ever have been stopped by police officers. And every year, the same thing happens. Most of the white students, especially the girls, tell funny stories about how they talked their way out of tickets. And then every black male in the room explains how they’ve been stopped for having a headlight or a tail light out, or for no reason at all; how they’ve been taught to keep their hands at 10 and 2, to reach carefully for their license and registration, but only after telling the officers they were doing so; how they were told to step out of the car and put their hands on the car; how they felt terrified until the officers realized they were college students, good kids, not criminals or drug dealers.
How do you teach a class like that without black men in the room? You don’t.
And who loses if they aren’t there? We all do.
Susan Estrich is a law professor in Southern California.