On April 22, the Supreme Court ruled to uphold Michigan’s 2006 decision — which was supported by 58 percent of voters — to ban consideration of race or sex in public education and employment, a victory for states’ rights.

In a 6-2 vote, the justices ruled in Schuette v. Coalition to Defend Affirmative Action that a lower court did not have the power to overrule Michigan’s affirmative action ban, upholding Michigan’s ruling that colleges may not give “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”

The foundation of the Michigan case rested on the assertion that affirmative action is discrimination against white people and thus a violation of the 14th Amendment.

Since the 14th Amendment applies only to state laws, private universities like Georgetown are exempt from any legal basis that threatens affirmative action in admissions. Georgetown Dean of Undergraduate Admissions Charles Deacon identified a clear correlation between the prohibition of affirmative action and a reduction in diversity.

“I think the evidence is very clear. In the states that have adopted these policies, the number of African-American and Latino students enrolled in state universities has shrunk significantly,” Deacon said.

McCourt School of Public Policy professor Harry Holzer explained that the ruling focused more on whether or not a popular referendum has the power to make those kinds of decisions, rather than on the fairness of affirmative action as a practice.

“This ruling was not about whether affirmative action at the University of Michigan should be allowed to exist,” he said. “The issue was whether a popular referendum is allowed to ban affirmative action.”

Justice Sonia Sotomayor publicly spoke out against the decision as a step back for equal rights in a 58-page dissent.

“Today’s decision eviscerates an important strand of our equal protection jurisprudence,” Sotomayor wrote in a dissent.

Ada Meloy, General Counsel for the American Council of Education, also disagreed with the decision. The ACE submitted an amicus brief to the Supreme Court stressing their hope that the Supreme Court would respect its 2009 decision in University of Texas v. Fisher, which maintained that the University of Texas had the right to consider race in its admissions process.

“We were pleased that the court did not take away that ability of institutions, but disappointed that it allowed the ban to survive in Michigan,” Meloy said.

Holzer expressed concern over the decision, as it relates to the future of affirmative action as well as the power of popular referendum to make decisions.

“You know you could make a case that it’s important to respect the popular majorities, but if you had done that in the South, you never would have gotten rid of Jim Crow laws and all that,” Holzer said.

Deacon agreed that the future of affirmative action in public universities is beginning to look grim.

“You could say it has a chilling effect on the idea of affirmative action overall,” Deacon said.

Now that eight states including Michigan have placed restraints on affirmative action in public higher education admissions, state universities will begin to look at other ways to create a more diverse student body other than looking at race.

Holzer, who supports affirmative action as a policy in higher education, addressed the psychology behind the voters’ call.

“A lot of middle-income white people think that — they know that minority kids can get in with lower grades and lower test scores, and that makes them really angry. They feel that they’re the victims of discrimination. It’s sort of a narrow view,” Holzer said.

As schools now barred from consideration of race in admissions must alter their methods to include more socioeconomic diversity, Deacon said that Georgetown’s admission process has also begun to change to focus more on leveling the playing field for students who had access to fewer resources but does not neglect lower-income white students, a demographic that is left out from affirmative action.

“The way we think about affirmative action began to shift back in the [2004-2006] period, especially when we began starting to expand what I consider our affirmative action, to socio-economic as opposed to race … how do we think about putting the thumb on the scale to level the playing field as best we can for everyone,” Deacon said. “It has an ability to respond in a wider way but it also doesn’t leave people behind.”

 

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