That the Supreme Court keeps grappling with affirmative action while Washington lawmakers keep their distance makes it clear that elected lawmakers are content to let the Justices take the fore.
The Court is grappling this term with the constitutionality of preferential admissions at the University of Texas, and recently announced that it will review next fall the Michigan Civil Rights Initiative (MCRI) that amends the Michigan Constitution to prohibit preferential treatment based upon “race, sex, color, ethnicity, or national origin” in admissions, employment or public contracts.
Regardless of when and how the Supreme Court rules on the pending challenges to affirmative action, here are three takeaways:
One, opposition to affirmative action does not necessarily translate into opposition to Barack Obama. Two, interest groups that opposed racial preferences in the 1970s may now be among its backers. Three, liberal support for affirmative action as we know it may be ebbing, as “diversity” has become a shorthand for race.
As David Leonhardt put it in the New York Times, “low-income students, controlling for race, receive either no preference or a modest one, depending on which study you believe.” In other words, affirmative action is now another upper-middle class benefit.
So how did we reach this point? Ten years ago the Supreme Court struck down the University of Michigan’s undergraduate admissions policies as impermissible racial quotas, but left intact the University’s Law School race-based preference policy. Michigan voters responded to the Court’s decisions by approving by a nearly a 3-2 margin the MCRI in 2006.
Exit polls showed nearly every demographic group backing the measure by large margins. White voters, independents, non-church-goers, evangelicals, college graduates, and high school drop-outs all whole heartedly backed the MCRI. Subsequently, a legal challenge ensued and in a November 2012 decision an 8-7 majority of the U.S. Court of Appeals for the Sixth Circuit struck down the MCRI as unconstitutionally burdening minorities. Enter the Supreme Court, which recently announced that it would hear arguments next fall on the MCRI’s legality.
More significantly as a matter of politics, passage of the MCRI did not presage Barack Obama’s defeat in Michigan or elsewhere in the Midwest. In Michigan, Obama ran ahead of John McCain among white voters, the working class and independents. Indeed, Obama even won Michigan’s Reagan Democrat epicenter, which had voted in the 1972 Democratic Primary for George Wallace, Alabama’s late segregationist governor.
Times had changed and the outcome in Michigan was re-told throughout the Rust Belt. For example, Nate Silver reported a canvasser who approached a home in western Pennsylvania – God and Guns Country, where the husband yelled to his wife “We’re votin’ for the African-American!”—except he didn’t say African-American. Beer-track voters in the Midwest and Northeast resoundingly stood with Hillary Clinton in the primaries and resisted buying into McCain-Palin a half year later.
Affirmative action also is about where the descendants of Ellis Island stand and once stood, and amicus briefs filed with the Supreme Court tell a story. One of the more dramatic shifts occurred within the position of the Anti-Defamation League. Founded in 1913 “to combat racial and religious prejudice,” the ADL historically took a dim view of racial and ethnic preferences. In a brief filed in the 1978 Bakke case where the Court weighed the constitutionality of admissions preferences at the University of California’s medical school, the ADL together with an Italian-American civil rights group, UNICO, attacked the California admissions program as “reverse discrimination” that was “inconsistent with the mandates of the Fourteen Amendment’s Equal Protection Clause…”
But then something happened. The grandchildren of Ellis Islanders became alumni, their children became legacies and they stopped demanding meritocracy and instead began supporting carve outs that could help boost their own kids into the Ivy League. Dink Stover lives. That is, the stereotypical WASP Yalie of 1912 has been joined a century later by another child of privilege, albeit one likely reflecting America’s waves of immigration. And so a defense of civil rights has morphed into support for “diversity.”
The ADL also filed an amicus brief filed in connection with the present challenge to the University of Texas’s admissions policies, and stood with the school – not the student plaintiff. It announced that through its own programs the ADL had reached “literally hundreds of thousands of teachers and peer trainers and, through them, millions of students, in an effort both to eradicate bias and hate before it hardens, as well as to promote diversity and pluralism.”
Over the same time frame, however, fissures have emerged within the Asian-American community over affirmative action. In the Texas case, Asian-America groups have filed briefs on each side of the issue. Echoing sentiments expressed by the ADL forty years earlier, the Asian American Legal Foundation attacked the Texas program as “odious” and lobbed this rhetorical grenade, by quoting Supreme Court precedent and positing that perhaps Texas “believes that Hispanics are somehow more valuable than Asians in promoting ‘cross-racial understanding,’ breaking down ‘racial stereotypes,’ and enabling students to ‘better understand persons of different races.’”
The cacophony surrounding racial preferences comes against the backdrop of the Great Recession, and growing inequality coupled with diminished upward mobility. In today’s America, wealth and class are calcifying at the same time as our population becomes less racially and ethnically homogeneous. Whether or not someone’s parents went to college matters, more and more. Race and ethnicity-based admissions may ultimately prove unconstitutional. But, we as a country will need to find a way to bring everyone along.
Ideally, education should serve as a vehicle for advancement by poor and working class students regardless of race or ethnicity. However, given cash-strapped endowments, the avalanche of student debt and the diminished value of many college degrees in a globalized economy, getting there will not be easy.
To put things in perspective, almost half of college graduates hold jobs that do not require a college degree – 15 percent of cab drivers hold a B.A. as do a quarter of all sales clerks. Still, with college graduates earning 50 percent more than high school drop-outs and the unemployment rate of college graduates at half the national level, don’t expect the demand for college entry to slacken.
Whether the Court rules on the Texas case by the end of June or waits until it decides the Michigan challenge remains to be seen. But whenever and however the Court decides, expect a fight to create winners and losers in any new system — and then a continuing one between those winners and losers.