Affirmative action lost a major battle on Tuesday. In a 6-2 decision, the U.S. Supreme Court allowed a majority of voters in Michigan to end affirmative action there. The Schuette v. Coalition to Defend Affirmative Action case has set a dangerous precedent. “This case says majority rules in a land of minorities,” as Gloria J. Browne-Marshall, associate professor of constitutional law at John Jay College, writes in a trenchant commentary.
Opponents of affirmative action argued that Michigan voters had a right to end it by state-wide ballot, and the court agreed. The use of any preferences based on race, sex, color, ethnicity and national origin is now banned in Michigan in any employment, contracting and education decisions involving state and local government.
Justice Sonia Sotomayor dissented with the majority, arguing that to allow the majority to decide the fate of minorities, who rely on affirmative action for equal education and employment opportunities, would turn back the clock on justice in America. Research data suggest that Sotomayor, rather than this court majority, is speaking for the American public.
Americans say by roughly two-to-one (63 percent to 30 percent) that affirmative action programs designed to increase the number of black and minority students on college campuses is a “good thing,” according to a survey conducted by the Pew Research Center February 27-March 16. This was almost the same result Pew Research found in 2003.
While a majority (55 percent) of whites support affirmative action programs on campus, that compares with 84 percent of blacks who believe they are a good thing and 80 percent of Hispanics, Pew reported. Justice Clarence Thomas, the only African-American justice, is a minority among minorities in rejecting affirmative action. Anyone familiar with the voting record of Thomas, himself an affirmative action beneficiary, knew he would vote to uphold Michigan’s ban.
There is also a partisan division on this issue. Nearly eight-in-ten (78 percent) Democrats back the programs as a good thing, as do 62 percent of independents, according to Pew data. Among Republicans, 50 percent see racial preferences as a bad thing and 43 percent view them as a good thing.
However, the majority in favor of affirmative action reported by Pew may not be reflected in any given statewide vote, given state demographics, the vagaries of voter turnout, crafty ballot language and the deep funding that tends to back such statewide ballot initiatives, which can sway public perception in an election with low voter turnout. That is why the court’s relegating this crucial matter to statewide elections is dangerous. Statewide elections, in many states, shift power outside of diverse urban and suburban areas to rural and exurban voters. Proposition 2 passed in Michigan by a wide – 58 percent to 42 percent – margin.
Texas is first in line among the states that will now rush to follow Michigan in pushing a statewide referendum to ban affirmative action. Missouri’s Republican ideologues tend to fall in lockstep with the national conservative movement and will almost certainly pursue a statewide ban here.
Public figures and elected officials who wish to defend affirmative action should be encouraged by the polls and fight any statewide referendum boldly. The new Pew report is not a fluke. A CBS News/New York Times poll conducted last May found that 53 percent of the public supported affirmative action programs in hiring, promoting and college admissions, while 38 percent opposed them. When CBS News/New York Times asked those surveyed why they support these programs, 63 percent said it was because they increased diversity while 24 percent said it was to make up for past discrimination. To those responses, we say yes – and yes. Affirmative action addresses past discrimination and increases diversity, and in both cases the pursuit is necessary and good. Now more than ever, it is important to boldly defend affirmative action against its opponents, who may have won an important battle this week, but who remain a numerical minority.
