While clearly a setback, the U.S. Supreme Court’s decision to uphold Michigan’s ban on affirmative action in admissions to the state’s public universities is not a fatal blow to racial diversity efforts in higher education. The 6-2 ruling means only that state voters can decide at the ballot box whether to support such practices. In 2006, 58 percent of Michigan voters supported a constitutional amendment to prohibit discrimination or preferential treatment in education, government contracting and public employment.
The 6th U.S. Court of Appeals sided with affirmative-action proponents who sued to block the Michigan ban in higher education, arguing that in adopting the amendment the state had restructured its political process to disfavor minorities. But the Supreme Court, for a variety of reasons, rejected that argument.
The ruling may lead other states to take steps to restrict universities from using race as a factor in admissions, but for now Michigan and seven other states stand alone.
What voters in all 50 states should recognize is the critical need to offer fair and equitable access to higher education. Legislators in states that have not yet moved to restrict affirmative action — including Minnesota — should carefully consider what’s at stake.
States in which affirmative-action restrictions are in place — including Michigan — are enrolling far fewer Hispanic and black students in their best colleges and universities as a result.
As previous high court decisions have confirmed, it remains permissible for colleges to consider race as one — but not the only — factor in admission decisions. And there are other methods that admissions departments can use to ensure that they have culturally and racially diverse campuses.
It’s important to note that this week the Supreme Court did not further address the manner in which public institutions may consider race. Rather, the court limited its finding to whether Michigan’s ban was constitutional.
Writing for the majority, Justice Anthony Kennedy argued: “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.’’
However, as one of two dissenters, Justice Sonia Sotomayor powerfully made the case that the court’s decision undermines the faith that underrepresented groups have in government. Historically, women, people of color and other groups have depended upon the courts and the government to correct inequities. And since the playing field is not yet level, government must continue efforts to make it so.
She wrote that the ruling “ … eviscerates an important strand of our equal protection jurisprudence’’ and that for members of historically marginalized groups, the decision “can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.’’
Sotomayor’s argument is consistent with past rulings that acknowledge the need to continue inclusion initiatives — albeit with the hope that they will not be needed at some point.
Affirmative-action laws were passed to correct historic and sometimes legally supported discrimination. Though progress has been made, alleviating persistent disparities in employment, housing, education, income and health care will require continued special effort.
That’s why many public universities, even some in states with bans, continue to find ways around ill-advised rules. Texas, for example, started automatically admitting the top students from all state high schools to ensure that students from predominately African-American and Latino schools would have access to top schools. Other schools use family income as a factor, which gives poor students more opportunity.
It was heartening to see the University of Minnesota reaffirm its commitment to diversity, equity and access in the wake of the Supreme Court ruling. More schools — and states — should follow suit.