No, After the Schuette Case, Affirmative Action Isn’t Going to Be OK

True, the Supreme Court’s ruling was a narrow one. But it’s still going to speed up the end of affirmative action as we know it.

Associate Justice Sonia Sotomayor and Chief Justice John Roberts
Associate Justice Sonia Sotomayor and Chief Justice John Roberts JEWEL SAMAD/AFP/Getty Images

Above the Law’s Elie Mystal doesn’t think that affirmative action supporters need to hyperventilate over Tuesday’s Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action—which upheld Michigan’s ban on race-conscious admissions policies at state colleges—because, he writes, the justices, in fact, “didn’t rule that affirmative action is unconstitutional.”

And indeed, they didn’t—not this time, anyway.

Short term, all the court said was that it didn’t violate 14th Amendment equal protection when Michigan voters did away with race-conscious admissions. To go further into it, you can read the opinion here (pdf), and Vox breaks down the ruling here.

For now, affirmative action is still constitutional. But after Schuette, it’s also perfectly legal to just put it to a vote and end it.

Which is why I’m skeptical about Mystal’s “3 Reasons Affirmative Action Will Be Okay Despite Schuette Decision.” He’s relying on voters, admissions officers and students to be motivated to hang on to affirmative action, no matter what the court says—but I’m betting that they won’t be so motivated. I’m betting affirmative action won’t be OK.

The reason, I think, is that there are more folks at this point who agree with Chief Justice John Roberts, who wrote in Parents Involved in Community Schools v. Seattle School District No. 1, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It’s the idea that if we shouldn’t want race to matter in college admissions, then we should never consider race in college admissions, whether or not we’re aware of persistent racial inequality in education.

Even though we’re only 60 years removed from the end of legal segregation, the high court looks as if it’s ready to say “time’s up” and call it quits on race-conscious policymaking.

Never mind—as Associate Justice Sonia Sotomayor outlines in her dissent in Schuette—that despite what society agrees on in theory, in practice, “Race matters.” And that when we’re talking about the fate of affirmative action, we shouldn’t merely leave it at whatever voters decide, because that discounts “the long history of racial minorities’ being denied access to the political process.”

“The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,” she says, “and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. 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.”

It was one of several key moments in a 50-plus-page opinion that’s already been described as “epic” and “blistering”—an “allow me to reintroduce myself” moment for the court’s only woman of color in which she confronted, head on, Roberts’ core rationale for unwinding affirmative action. It’s worth reading, even if all the legal twists and turns make your eyes glaze over.