Wednesday, April 30, 2014

Sotomayor's Plea

The Supreme Court’s decision the other day in the Michigan affirmative action case—yes, Schuette v. BAMN was about affirmative action, hang on—prompted a flood of commentary, but neither the reporters covering the Court nor her fellow justices seemed to respond to Justice Sotomayor’s plea for frank talk. Respect for precedent keeps the justices from frankly acknowledging that affirmative action was at issue in the case. The result is that none of the five opinions clearly state the essential facts that are in dispute.

In Sotomayor’s dissent, joined only by Justice Ginsburg, she argues that affirmative action was followed by an increase in the proportion of students who identify themselves as “black” or “Hispanic” (or both) admitted to colleges and law schools that used such methods. The representation of racial minotities had been well below their share of the general population, began to rise after affirmative action was undertaken, and then declined sharply again when it was eliminated. One might draw the reasonable conclusion that affirmative action in admissions policy had helped to remedy effects of past and present race discrimination, and when affirmative action policies were suspended the effects of race discrimination reasserted themselves.

The State of Michigan disputed her facts, and Sotomayor was unable to make her point clearly, in part because the benign effects of “race conscious” policies are not accepted as legitimate reasons for their adoption. For the past twenty years, the Court has been asserting that affirmative action for blacks injures whites, those whom the first Justice Harlan called the “dominant race.” (Yes, that Justice Harlan, the one who argued for a “color-blind” Constitution more than a century ago.) 

Sotomayor and the male justices did not so much disagree as they talked past each other. Justices Kennedy, Breyer and Scalia, and Chief Justice Roberts, each expressed different reasons for upholding Michigan’s ban on race-conscious policies, and no opinion secured a majority vote. (Justice Kagan recused herself.) Each in different ways denied that the case was about affirmative action, however. Sticking to the doctrines announced in recent cases, the men insisted that the only question was whether race may be taken into account when a school seeks “diversity” in its student body. This was a policy matter the voters of Michigan might decide for themselves. Putting the question this way, of course, it answers itself.

Affirmative action, which appears to be needed if racial diversity is the target, was not openly discussed because it is barred except in extraordinary circumstances. Under recent precedents, laws that apply to racial groups must treat them equally. As Justices Scalia and Thomas suggested in their opinion, state policies that discriminate against whites are forbidden, just as policies that discriminate against blacks are forbidden. Affirmative action in their view discriminates against the "majority." The four concurring opinions for the Court seemed to agree that race need not be used as a criterion of “diversity”; that affirmative policies in favor of “minorities” discriminate against whites, and that any race-conscious policy is counter-productive because it cheapens the achievements of a favored minority and perpetuates racial stereotypes. These are conclusions of fact, but none of the four concurring opinions made much effort to establish their factual basis, relying instead on doctrine-driven precedent. The justices seemed to assert that the majority of Michigan voters vindicated the factual arguments against affirmative action by voting to ban it.

I think Sotomayor complaint is that doctrines have driven out facts. The national debate over affirmative action is being conducted as a war of slogans, and the Court has shirked its responsibility to separate fact from assertion, and to decide whether the Michigan ban on affirmative action has a reasonable basis.  

Neither side in the debate has done a very good job of stating a factual basis for their policy conclusions; but more on that another day.