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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