A New Setback for Racial Justice in College Admissions

By upholding Michigan's ban on the use of racial preferences in college and university admissions, the U.S. Supreme Court Tuesday dealt a new blow to racial justice.

Technically the court ruled that Michigan's Proposal 2, a 2006 ballot initiative that led to a state constitutional ban on race-conscious college admissions, is constitutional (a decision that overruled a lower court). The ballot initiative, challenged by a coalition of organizations supporting affirmative action barred students from lobbying schools to consider race as a factor in admissions. Of course athletes, donors and alumni are not banned from lobbying for special admissions access. That's why Mark Rosenbaum, the American Civil Liberties Union attorney who argued the case, said in a statement:

"This case is ultimately about whether students of color in Michigan are allowed to compete on the same playing field as all other students. Today, the Supreme Court said they are not."

Since Proposition 2 took effect in 2006, there has been a sharp decline in minority enrollment in state institutions of higher education. At the University of Michigan at Ann Arbor, African-American enrollment fell 33 percent between 2006 and 2012 while overall enrollment grew 10 percent.

The court did not directly address the issue of using race as a factor in college admissions, and the justices took pains to note in their decision that they were only ruling on the process Michigan undertook to institute its ban. That doesn't mean that opponents of affirmative action won't read more into the decision, just as they did in June, when the court ruled in the case of Fisher vs. the University of Texas, in which a white student sued the school claiming that its affirmative action admissions program had deprived her of a spot in the freshman class.

The court didn't stop the university's admissions program but did take steps to make it harder to create a diverse student body. The justices sent the case back to a lower court where, as Richard Rothstein wrote in this post, "the university will have to prove that it could find no other way to get a diverse student body without explicitly considering race, and will have to prove that it used "good faith" in use of race to achieve diversity." Rothstein, a research associate at the nonprofit Economic Policy Institute and an author, wrote:

The University and its civil rights group allies have, from an understandable tactical need to defend affirmative action by whatever means are available, accepted a Supreme Court framework that undermines equal rights in the long run. That framework is "diversity." According to it, we pursue affirmative action not to remedy the legacy of slavery, Jim Crow, and continuing discrimination, not because equal opportunity for African Americans is an end in itself, but because

• having a diverse student body improves the educational experience for white students, and because
• it trains corporate and military leaders who will be more effective if they look like and have a better understanding of those they lead.

Forgotten has been the idea that African Americans are underrepresented at the University of Texas and at other elite institutions because, as Justice Ginsburg put it in her lonely dissent, they suffer from "the lingering effects of an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality." In reality, affirmative action is necessary not to make white students more comfortable in the presence of blacks, but to remedy those effects.