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Steps Forward and Back for Affirmative Action

 Last week, a federal appeals court panel struck down a 2006 Michigan voter initiative amending the state constitution to ban racial and ethnic affirmative action. By 2-1, a panel of Sixth Circuit judges found that the voter ban “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”
An effort to ban affirmative action by lobbying college-admissions committees would have been permissible because minority advocates could seek to overturn such decisions, the court said, but changing the state constitution violates the federal constitution because the only recourse for minority advocates is to alter the state constitution—a formidable task.
Opponents of affirmative action were outraged by the decision, asking, how could an initiative that banned racial and ethnic preferences itself be discriminatory?  The ruling isn’t crazy—there are two Supreme Court precedents striking down voter initiatives that were seen as unfavorably affecting the political process for minorities—but many observers believe that the panel decision will be overturned on appeal, either by the full Sixth Circuit or the U.S. Supreme Court.
Observers note that in 1997, the Ninth Circuit Court of Appeals rejected a challenge to California’s voter ban on affirmative action. And they note that 10 of 15 judges on the full Sixth Circuit were appointed by Republican presidents.  In addition, the U.S. Supreme Court, under Chief Justice John Roberts, has itself struck down racial consideration as unconstitutional in the school integration context, so it seems unlikely that the high court will rule that the same constitution prohibits voters from enacting a ban on racial preferences.
Meanwhile, a much-less-noticed development last week spells long-term trouble for proponents of racial and ethnic affirmative-action policies. The University of California system announced that the number of Latino students indicating that they intend to enroll in the fall is nearly equal to the number of non-Hispanic white students—a big shift since five years ago, when white freshmen outnumbered Latinos by almost two to one. This demographic change—which foreshadows changes across the country in years to come—is clearly good for diversity, but is probably bad for the legality of affirmative-action policies.
Historically, the “diversity rationale” for affirmative action was an important strategic advance for supporters of the policy. The original “remedial rationale”—that racial preferences were necessary to correct for a history of egregious discrimination—suffered from a built-in time bomb, becoming less persuasive as the history of slavery and segregation receded into the past. The diversity rationale, by contrast, suggested that the educational benefits of having a diverse class were compelling irrespective of the nation’s history of discrimination, thereby extending the life of affirmative-action policies.
But the diversity rationale now faces its own ticking time bomb: the idea of “critical mass.” In Grutter v. Bollinger (2003), the U.S. Supreme Court didn’t say universities could employ racial and ethnic preferences to achieve proportional representation of groups, only that they could employ preferences to create a critical mass of students necessary to enhance discussion. In Grutter, critical mass was satisfied in a class that had a combined black and Hispanic representation of 14.5%.
In the UC system, however, Latinos alone now constitute 26% of the incoming freshmen class, without any use of racial or ethnic preference. To be sure, California’s general population is more diverse than most states, and the elite universities within the UC system are less diverse than the system as a whole. But the demographic change sweeping the country will, over time, reduce the need for affirmative-action policies to create a critical mass of minority students.
Proponents of affirmative action, perhaps sensing this reality, advanced a new argument in a recent challenge to affirmative action at the University of Texas: suggesting that the critical mass requirement applies not to a college as a whole but to every classroom. This notion, however, is unlikely to fly with the U.S. Supreme Court—just as the challenge to Michigan’s affirmative-action ban is unlikely to be sustained. For those of us who care about racial and economic justice in higher education, the nation’s dramatic demographic changes hasten the need to find viable alternatives.
Photo courtesy of The Black Sphere

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