Raced-Based Preferences Forever
Sonia Sotomayor picks a new euphemism for the endless fixation on race.

Justice Sonia Sotomayor


John Fund

You can often tell when advocates of one side in an argument fear they will ultimately lose. They change their branding. A few years ago, warnings about “global warming” were replaced with scare stories about “climate change.” One reason? The Earth had stopped appreciably warming in the late 1990s, making the change a PR necessity.

Supporters of affirmative action are now signaling similar weakness. What was called “racial quotas” in the 1970s and has been referred to as “affirmative action” since the 1990s is giving way to a new term: “race-sensitive admission policies.” The language shift is telling — race-based preferences are losing intellectual, judicial, and political support.

Yesterday, the Supreme Court voted six to two to uphold the Michigan Civil Rights Initiative (MCRI), which was passed with support from 58 percent of that state’s voters in 2006. It simply enshrines in Michigan’s constitution that the state should not engage in race discrimination. Opponents of the initiative sued, claiming the measure discriminated against racial minorities who might wish to lobby for preferential treatment.

The MCRI was put on the ballot in response to a 2003 Supreme Court opinion upholding an affirmative-action program at the University of Michigan. The Supreme Court properly held yesterday that Michigan voters were free to change the program, noting that if the state legislature and university regents had the right to do so — as even the plaintiffs agreed they did — so too should voters.

As narrowly written as the opinion was, it elicited a blistering dissent from Justice Sonia Sotomayor. At 58 pages, her dissent was longer than the opinions of all the other justices combined — and she took the relatively unusual step of reading it passionately from the bench.

“The stark reality is that race still matters,” Sotomayor said. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” She went on to chastise the majority’s opinion: “My colleagues misunderstand the nature of the injustice worked by” the Michigan amendment.

Chief Justice John Roberts directly confronted Sotomayor in his own concurring opinion: “It is not ‘out of touch with reality’ to conclude that racial preferences may themselves have the debilitating effect . . . that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

But while Sotomayor’s overheated argument made the headlines, her  most intriguing statement came in a footnote in which she noted: 

Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone — for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students.

Her insistence that existing affirmative-action programs don’t result in the admission of  unqualified students — and effectively amount to quotas — is at odds with the facts. 

As I pointed out last month on NRO : “The median African-American student at law school has credentials lower than those of 99 percent of the Asian and white students — and underrepresented minorities admitted to law school based on a heavy preference are two to three times more likely to fail the bar exam.”