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Michigan affirmative-action case: Sotomayor’s reasoning is not persuasive

Considering race in merit-based selections is unfair and unconstitutional, no matter how Justice Sotomayor tries to justify it.

It is hard to believe but there hasn’t been a single reaction in MinnPost to the latest Supreme Court decision that let stand Michigan’s ban on affirmative action. I think this case deserves some commentary and discussion.

I will remind people what this is about. In 2006 Michigan voters, by a huge margin, approved a constitutional amendment that prohibited any consideration of race in college admission. Predictably, affirmative-action supporters (consideration of race is usually a euphemism for affirmative action) sued, alleging that they would not be able to petition for affirmative-action use in admission policies while supporters of all other causes can still do it. By doing so, they did not claim that affirmative action is a civil-rights issue but rather that banning it is unlawful.

The case had made its long way through all possible courts before it ended up in front of the U.S. Supreme Court. All of the federal courts had sided with the plaintiffs, so this decision overturned the previous ones. The Supreme Court decision was 6-2 (one justice did not participate), with Justice Sonia Sotomayor reading a 15-minute excerpt out of her 58-page dissenting opinion. However, it is notable that one liberal judge supported the majority’s decision.

I will base my analysis on several of Sotomayor’s excerpts from her speech and also her book. “The way to stop discrimination on the basis of race,” she wrote in her dissenting opinion, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Sotomayor later reiterates, “Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process.” And in her book she praised affirmative action, said that it played a role in her admission to the law school, and said that “it opened doors in [her] life.”

So let’s take Sotomayor to her words and “speak openly and candidly on the subject of race” (and remember that both President Barack Obama and Attorney General Eric Holder have repeatedly made the same call). Let’s remember, however, that speaking openly includes presenting the opposite point of view, even if that point of view may seem unpleasant and even offensive to some.

The issue of past discrimination

There are two points that Sotomayor is trying to make here. First, she clearly refers to the history of past discrimination as a justification for affirmative action. However, the Supreme Court, even when it allowed consideration of affirmative action in college admission, used a completely different justification – diversity, and diversity only.

If past discrimination is the reason for affirmative action, logically the length and strength of discrimination shall determine the level of affirmative action applicability to different groups of people. Therefore, the Jews should be the ones who are given the greatest advantages and both Catholics and Mormons should be included as well. But that is not how affirmative action is being applied, so I would say that Sotomayor’s argument is not persuasive.

Her second point is that, since affirmative action benefited her, it must be good. But let’s see: If it opened doors for her, it without doubt means that it closed those doors for others (since the number of people who can go through those doors has always been limited). So affirmative action, while benefiting Sotomayor, did just the opposite to someone else who was at a minimum not worse than she. How is it fair? 

Obviously, the only reason affirmative action helped Sotomayor was her race/ethnicity. But how would all of us react if the only reason for someone’s advantage would be his or her white race? We would be appalled and rightfully so. That was the reason affirmative action was implemented to begin with. 

How can different treatment of different races be reconciled with the Constitution?

Other advantages offered

Some may argue that colleges give advantages to some people anyway. That is correct, but those advantages are different. For example, considering athletic ability is still a merit consideration, the same as past alumni relation – they are individual qualities that eventually bring money to college. I do not like either of those considerations and think that at best they should affect scholarships, not admission, but at least they are constitutional.

At the end, I also want to address another point made by affirmative-action supporters which argues that it’s not past discrimination but present inequality that justifies affirmative action. I am not going to argue here that it just doesn’t exist – it does (inequality, not discrimination), even though it is not necessarily based on race only. But these disparities are being addressed in a different way already; additional programs, support systems, and money that are devoted to eliminating those inequalities are there. And, fortunately, they are fully constitutional: The government has the right to tax people, and it also has the right to use that money for the common good, and that is what it is doing even though the definition of common good may vary greatly. But considering race in merit-based selections is unfair and unconstitutional, no matter how Justice Sotomayor tries to justify it.

Ilya Gutman is an immigrant from the Soviet Union who now lives and works in Marshall, Minnesota. 


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Comments (26)

  1. Submitted by Bryan Mitnaul on 05/06/2014 - 01:28 pm.

    Affirmative Action and Racism

    I think that is interesting that whenever something threatens the privileged position of the white male it is suddenly deemed unconstitutional. The purpose of Affirmative Action was to make up for the out of balance advantages offered to white males throughout the history of this country.

    We somehow have lost sight of that purpose amidst the clamor of white males yelling that they have been robbed of a birthright. We will never have equality until the playing field of historical advantage is somehow leveled. The author refers to the fact that because doors were opened for Sotomayer via Affirmative Action that doors were closed for someone else. He fails to take into account the number of other unfairly available open doors (options via money, family connections, etc.) that are available to someone else (white males).

    One option would be to eliminate family history (children of alumni or large donors) in college admissions. I am sure no one will support this idea, but such admissions are based upon a form of affirmative action. If ALL admissions are to be merit based, then this type of advantage should and must be eliminated.

    This is just a part what I believe that Justice Sotomayer was referring to. The problem is that no one cared to listen from her perspective.

  2. Submitted by Kurt Nelson on 05/06/2014 - 02:12 pm.

    Life ain’t fair

    Sometimes there are winners and sometimes losers, but nowhere is it written that life is fair. So, Justice Sotomayor benefited from Affirmative Action, and the automatic cry is that someone else, equally (probably not) qualified was left out of the equation – sorry, but that is how it goes.

    I’m guessing that the Justices’ GPA and test scores were pretty, um high, and she gained admittance to law school on her merits, but the fact she maybe got a spot because she is a women is sort of insulting don’t you think. Oh, wait, we are talking about using race, and not gender. Is gender okay to use when colleges design their admissions policies, or is this unfair too.

    From the dissent
    “The Fourteenth Amendment instructs that all who act for the government may not “deny to any person . . . the equal protection of the laws.” We often think of equal protection as a guarantee that the government will apply the law in an equal fashion — that it will not intentionally discriminate against minority groups. But equal protection of the laws means more than that; it also secures the right of all citizens to participate meaningfully and equally in the process through which laws are created.”

  3. Submitted by Dennis Tester on 05/06/2014 - 05:09 pm.

    Race-based admissions

    Should Barack Obama’s daughters be admitted to the college of their choice simply because they’re black?
    Should Eric Holder’s daughter get into Harvard ahead of the son of a white truck driver?

    All race-based decisions are by their very nature, racist.

    As a high school senior with exceptional grades, test scores and athletic accomplishments, I was assured by my counselor that I could pretty much choose whatever college or university I wanted to attend. Why? Because unlike my white schoolmates who had even better scores and grades, who had no such guarantee, I had something they didn’t have: Tribal membership.

    I remember being shown around a large, prestigious campus and told that upon receiving my bachelors degree, I could expect an automatic acceptance into their medical school. “Why?” I asked. “Because you’re an Indian.” came the reply. (This was before the culture insisted that we be called Native Americans.)

    I was stunned at the notion that someone felt that I couldn’t do this on my own without a special deal that others weren’t going to get. I chose not to enroll there. In my view, no serious, self-respecting student wanted to be considered an affirmative action enrollee who was there thanks to their race. What an absolute insult to me as a human being.

    People like Sonia Sotomayor who not only accept affirmative action appointments but who embrace them as an entitlement, have zero integrity in my opinion. Because we will never have true equality, everyone will not be seen as an equal until we stop accepting the notion of protected classes of human beings.

    • Submitted by Steve Rose on 05/07/2014 - 08:56 am.

      Raced-based admissions …

      Raced-based admissions are a disservice to those who made it by their own horsepower, needing no accommodations for entrance and completion of medical school. How often is such a person falsely regarded by others as someone who reached their position due to a lower bar?

  4. Submitted by Ilya Gutman on 05/06/2014 - 08:01 pm.

    Fair or not

    I wonder if people who disagree with me bothered to read the entire piece. Mr. Mitnaul refers to additional advantages of the alumni got – but that was addressed in the article. He also brings up the past discrimination – and that was also addressed. Please read the entire thing – that would help.

    And Mr. Nelson said that sometimes there are winners and sometimes there are losers and life is not fair. I agree and that means that affirmative action is not necessary – someone wins and someone loses by his logic (and by mine). Unfortunately Mr. Nelson did not read my entire article either because it says there that Ms. Sotomayor acknowledged that she was admitted to college and law school because of affirmative action so someone was definitely better than she was. And of course gender is as unfair to use in admittance as the race – no doubt about that.

    By the way, what are my privileges as a white male? I never noticed anything. Can Mr. Mitnaul or anyone else explain this to me? Or maybe Mr. Mitnaul and Mr. Nelson are the only ones who agree with Ms. Sotomayor?

    • Submitted by Raj Maddali on 05/06/2014 - 10:32 pm.

      Past Discrimination

      The Supreme Court did not address past discrimination. It only addressed the right of a states citizens to ban race based decisions in admissions.

      Does the state not practice affirmative action when it chooses ? Example.

      Immigration from Russia. On what basis was immigration from Russia? Wasn’t it based on religion ? If so did the state not give such persons a preference based on your religion thereby excluding others waiting in line. Oh and such religion based affirmative action helped the “white male” !!!!!!!!!!!!!!!

      • Submitted by Dennis Tester on 05/07/2014 - 07:17 am.

        Religious persecution

        It wasn’t based on religion, but on religious persecution, just as people are admitted into this country for reasons of political asylum. Russian emigres included both Christians and Jews. They were rescued from the chains of communism, which I suppose to some here would be unnecessary.

        • Submitted by Raj Maddali on 05/07/2014 - 08:11 am.

          Religous Persecution. Others claim it too

          You’re dodging it, Dennis.

          Existing immigration law accounts for religious persecution. They could’ve joined the immigration queue just like every other person with a claim to be persecuted

          • Submitted by Dennis Tester on 05/07/2014 - 09:36 am.

            During the Cold War

            Immigrants from the Soviet Union were moved to the head of the line because their communist oppressors were the primary adversaries of the U.S.

            It was in all the papers.

  5. Submitted by Ilya Gutman on 05/07/2014 - 07:22 pm.


    I was not talking about the Supreme Court decision – I was talking about the reasons Sotomayor used to justify affirmative action where she clearly referred to past discrimination.

    Raj, I thought you should be above personal attacks. Refugee status is given on the basis of PRESENT and possible FUTURE discrimination, not past. And the US took tens of millions of refugees from the Middle East, as you must be aware, so this has nothing to do with either race or religion of a group of people and everything to do with current situation. This here is a huge difference between PAST and PRESENT discrimination. That is why I said that affirmative action was OK when it was started but not now.

    And once refugees come to America, they do not have any advantages (unless they fall into a specific group covered by affirmative action). So no, I did not get anything as a white male.

    • Submitted by Raj Maddali on 05/07/2014 - 10:46 pm.

      Past Discrimination

      Just because the court and only Justice Sotomayor addressed it does not negate it as an issue. The court ruled on a straight and narrow principle. That is, that the voters can choose. Period. This will haunt the court and country later, when minority communities become the majority in these states. And they can flip the tables.

      I can assure u its not a personal attack. I’m just pointing out where others benefit based on quotas. These are cold hard facts. Refugee status given to Soviets was based on their religion. And many got preferential treatment because of their religion. Which means those people got green cards by pushing aside someone else. Thats just a fact. They were able to jump the proverbial immigration queue. The very you make a big deal of when it comes to race.

      Just as in race the role of PRESENT and FUTURE discrimination in religion is not something a court takes into account. The court refuses to look at discrimination except in individual cases. Because. Those are political judgements. The very political judgements that when it comes to religion, you whole heartedly support. And such political judgements when it comes to race you oppose. That, to put it kindly, is a contradiction.

      My position is more gray. These are political decisions. If the right wishes to view race in the straight and narrow, then they should view religion in the straight and narrow. Something they refuse to do. Just like how they are all against illegal immigration. Except for Cubans !!!

      There are many programs that benefit whites. The court (and conservatives) just pretend that such programs are somehow race neutral.

      • Submitted by Rachel Kahler on 05/08/2014 - 09:57 am.

        Race neutrality

        I agree with Raj. Although I can see where the legalities of Affirmative Action are pretty bendy, I also see that it is impossible to maintain equal treatment under the law (and government entities) in a race neutral way. What if we say, ok, we’ll make college applications anonymous and only attach a face and name after admissions. Well, if given a choice between nameless, faceless candidate A, who has a 4.0 average at rich, suburban high school X and nameless, faceless candidate B, who has a 4.0 average at poor, inner city high school Y, who do you think the admissions people are going to choose? And do you think that the odds of racial discrimination in such a choice are low? Maybe not intentionally, but the admissions staff “know” that a 4.0 at high school X is a greater achievement, right? Add to that candidate A, by virtue of being located near high school X probably has opportunities for extracurriculars and community service that candidate B doesn’t have simply by being in proximity to high school Y.

        So, it would appear that racial discrimination will happen no matter what. Why not just stick names on the applications, and hide faces. It’s not terribly difficult to see then that, even if candidate A wasn’t white, what’s in a name is pretty important, too. Recent research has shown that candidate A can have exactly the same qualifications as candidate B and candidate B can look pretty much indistinguishable from candidate A, but if candidate A has a name like John or Elizabeth and candidate B has a name like Dante or Larese, candidate A will have more opportunities in pretty much all aspects of life. And, even if you “normalize” first names and simply look at last names, a John Gutman is more likely than a John Maddali to be called in for that last interview, whether it be an entrance interview for college or a job.

        So, skip the names and just go with faces. It might be harder to discriminate against an Ilya if he looks just like a John, right. Exactly. In the absence of everything else, a white, male Ilya will automatically be given certain privileges, regardless of his background. And that’s hard to see for someone who has not seen otherwise.

        By the way, there’s been much ado about Justice Thomas’ clear dislike of Affirmative Action. Many say “after all, as a black man, shouldn’t he like it? It must be terrible if he doesn’t.” No, I don’t think so. Justice Thomas has pretty much claimed that Affirmative Action has made him and every other person of color a victim. I strongly disagree. In the face of opportunity, to claim victimhood is a sign of poor character, not disadvantage.

  6. Submitted by Ilya Gutman on 05/08/2014 - 05:55 pm.

    No contradiction

    I was not discussing the court decision – I was discussing the Sotomayor’s opinion and tried to show that it is inconsistent, contradictory, and unfair. But I can say that it is a pity that the Court has ruled so narrowly – it should have stricken affirmative action altogether as unconstitutional.

    So to answer the other complaint about my position: I am against any privileges, whether based on race, religion, gender, etc. And refugee status was not given on the basis of religion to the people in the Soviet Union – it was given on the basis of prosecution by the government. Therefore, Russians, Jews, Ukrainians, Tatars, and others were given that status. And they had a personal interview with every single person (except small kids) to determine eligibility. Basically, it is an equivalent to coming to the bad neighborhood to find who wants to get out and finding someone who is about to be beaten – surely, that person will get out first, but not because of his or her race, religion, or anything else; just because of the imminent danger…So Raj’s understanding of the refugee process was not correct and I hope I was able to explain it better. And by the way this also explains the Cuban case: those people are not immigrants but refugees…

    And yes, let’s have faceless and nameless applications. In order to compensate for school differences, it is possible not to mentions schools at all, right? Plus there is also ACT which has nothing to do with schools. Anyway, it is possible to have it merit only based, there is no doubt – we just need to try. And using affirmative action takes us further away from that.

    Raj, what are the special programs for whites? I am not aware of any…

    • Submitted by Raj Maddali on 05/09/2014 - 09:18 am.

      Plenty of contradiction

      Sotomayer was being intellectually honest. Affirmative Action, not quotas, is acknowledgment of disparities. Saying, have we looked at all asprirants for a job/position/title is not a quota..In my opinion the Gratz case, that she was denied admission because of AA was a flawed premise. She should have had to prove that every other admission method used by the university was not race nuetral. Like legacy programs. But alas we have a court that has Scalia and Thomas.

      Immigration from the Soviet Union was based on religion. There is an entire wikipedia article that points it out. Even so all such immigrants were given special quotas. Just like Cuban immigrants. They may be refugees. But so are Haitians, who are not given such quotas. This is all politics. And to posit that its only Affirmative Action by minorities are parts of such quotas is right wing selective memory. Even in business, there is the sugar quota. There is the textile quota.

      To have faceless and nameless, then everything should be nameless and faceless. Right from high school.. I’ve personally seen how the well connected get quotas. Far more than minorites. Every selection process in high school and college favors the well connected. My kid won Division in Science. But was never allowed to even go to state. The other kids did not win anyting, ever. Next year because she was a senior they had to send her. She won 4 events at state. But alas, it did not matter because college applications were already out. Who do u think were the beneficiaries of such quotas ? African Americans ?

      Special programs for whites. Rural Electrification, Rural Health , Rural Roads.All subsidized by the Govt. Who do u think benefits from those ?

  7. Submitted by Steve Rose on 05/09/2014 - 08:37 am.

    African American Senior Party

    Earlier this month, I received an email from the Minneapolis high school one of my sons attends regarding an African American Senior Party.

    Many years ago, Martin Luther King Jr. called for a color blind society. There are elements at play in our society making certain that it will never come to pass.

  8. Submitted by Jon Lord on 05/09/2014 - 10:33 am.

    Wealth plays a role in getting into colleges.

    When I asked Administration why another person in my class got free grants and loans when that person barely had a C average, while I only qualified for loans with an A average, I was told the father of the person in question paid a lot in taxes. We were both white but it begs the question that if most Minorities come from underprivileged families won’t that be held against them? The implications are that most Minorities will be held back. It becomes more difficult to advance to the point where paying taxes gives one’s family an advantage. Our racist heritage is included in that whether we like it or not.

  9. Submitted by Matt Haas on 05/09/2014 - 05:38 pm.

    Its really quite simple Ilya

    You are attempting to have the admissions process function as it SHOULD, in the world as you think it SHOULD be. Proponents of AA are attempting to mitigate the world as it IS. Whether or not you feel racial discrimination is real is irrelevant, you’ll never face it either way. I personally dislike the extant this truism is used in some race debate, but its perfectly applicable and relevant here. Your belief in meritocracy is only relevant so far as it is held by everyone else as well. Simply wishing for something to be so doesn’t make it reality.

  10. Submitted by Ilya Gutman on 05/09/2014 - 07:41 pm.


    Sotomayor was not intellectually honest because the only thing she was talking about was the race and even that was limited to just two categories (I am sure she did not think about Asians). And Gratz did not have to prove that other admission policies were not race neutral because AA on its own is clearly and explicitly not and that was at issue.

    Now, I just re-read the 14th Amendment and it is applicable to citizens only meaning that immigration is not covered by that. However, I still disagree that refugee status was given based on religion regardless of what Wikipedia says – I think I know better. It was given based on prosecution by the Soviet state which was in many cases based on religion. But the American government was not basing its decisions on race or religion but on individual conditions.

    As for other quotas, they exist and they are wrong in almost all cases but that is not an excuse to have one more. And I cannot comment on Raj’ kid situation but from his description it looks wrong but again, we should try to correct the wrongs, not add to them.

    As for rural programs, I live in rural area and there are plenty of minorities here who benefit, not just whites. And wealth does matter in everything, for example, in what cars we are driving but the alternative to that is the Soviet Union and Cuba.

    And saying that I want the process to function as it should is a compliment. Shouldn’t we all want it to function as it should in a fair world? Shouldn’t we all wish for meritocracy? And don’t tell me that I will never feel discrimination implying that others will. There is not a single real example of people suffering from discrimination, just statistics and people use some statistics and ignore the other… There is racism but not intentional racial discrimination.

    • Submitted by Matt Haas on 05/09/2014 - 11:14 pm.

      Then you are being intentionally obtuse

      You can one hand (stated many times before) believe that in the abscence of positive correction (in the form of reduced safety net programs) everyone because of human nature will revert to sloth and cannot be trusted to do the “right” thing, while on the other state that in the abscence of corrective action of AA, people will NOT, due to human nature, revert to discriminating against those unlike themselves. Go ask some of your rural neighbors opinions on Mexican immigrants, legal or not, and tell me that racial discrimination does not exist. I grew up in a rural small town, you’re wrong to the point of what seems to be intentional self delusion. To use an example you can relate to, what the admissions process is in the actual world could be likened to a scenario in your former home. The admissions process is controlled by the “party”, the applicants, simply by virtue of their race, can be likened to a person who is known to be against the “party”. Now, you tell me, would the communists be likely to discriminate against the openly anti-communists?

  11. Submitted by Ilya Gutman on 05/10/2014 - 09:49 am.


    Matt, the easiest way to argue is to insult an opponent..

    First, I have been living in rural area for 20 years (I do not know when you were growing there) and I have not noticed any intentional discrimination. Sure some people do not like Mexicans (I never said that there is no personal racism) but that is not the same as discrimination – hopefully you can discriminate between the two things. I said many times – all decision makers would prefer to give preferences to minorities than the other way around – some for the reason of their own beliefs and some for the fear of being accused in racism. By the way the government policies towards illegal immigration are fueling racism (and AA is fueling the resentment as well).

    As for admission policies, to the best of my knowledge, all race information is self reported on the applications (and by the way, in some cases is kept separately from applications) so people can easily report what is beneficial to them (and no one would punish them even for marking the wrong race). And yet people do use their minority status on the applications even if they are of mixed race and some even insist on that when challenged. Are they acting against their self-interests? If it were that easy in the Soviet Union to avoid discrimination….

  12. Submitted by Matt Haas on 05/10/2014 - 08:07 pm.

    Its not intendend as an insult

    I really cannot fathom how it is that you believe what you are writing, aside from some deliberate ruse for effect. In my elementary school, middle, and high school, which ended 15 years ago or so black kids sent from Milwaukee were routinely harassed to the point of physical abuse the moment they set foot in our small rural town. They were refused entry to stores, restaurants, kicked out of class for no reason. The same tactics were applied to migrant Mexican workers when they arrived in the late 90’s. Into back periodically, it still occurs today, as I’m sure it does in a place like Marshall. I’m not being insulting when I say you seem delusional for not seeing it, I just cannot fathom any another way that you could not. This is only the overt racial discrimination that we are talking about. This is nothing compared to thjngs like the landlords who never seem to have minority tenants, (though they always give everyone an interview to keep up appearances), same for the small business owners whose staff never manages to include anyone but the white and affluent despite the multiple qualified applicants from outside that group. “Business reasons” or “office culture compatibility” easy code for “whites only”.

  13. Submitted by Ilya Gutman on 05/12/2014 - 08:27 pm.

    Sorry, Matt

    Matt, I can only feel sorry for all your experience but I am saying what I see and that is it: NO DISCRIMINATION. And I have had kids in school and have multiple other connections to school and other organizations to confirm that. In fact, everything is done to help the minorities including a position of “minority advocate.” So please change your position and stop by when you have time and see for yourself.

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