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.”
And not all racial minorities are of one mind on affirmative action. In 1996, after a ferociously negative campaign, 55 percent of Californians passed Proposition 209, a measure similar to Michigan’s ban on racial discrimination. It was backed by four out of ten Asians and a quarter of blacks and Latinos. Prop 209 hasn’t had any of the disastrous consequences predicted by its opponents. It has fostered better legitimate outreach efforts by universities such that the percentage of blacks and Latinos in the overall University of California system has actually increased from what it was in 1996 (while declining at the most elite UC campuses).
But this year, when an attempt was made in California’s state legislature to put a repeal of Prop 209 on the ballot this November, it was an outpouring of opposition from Asian Americans who feared their children would be disadvantaged in university admissions that blocked its passage. “In an increasingly diverse America, there are many different minority groups with a variety of differing interests. On most issues, therefore, there are likely to be minorities on both sides,” wrote Ilya Somin, a law professor at George Mason University. He noted that Asian Americans were not mentioned even once in Tuesday’s opinions on affirmative action in Michigan, even though the text of the five opinions ran to 108 pages.
In 2012, Attorney General Eric Holder made an eye-opening statement during an appearance at Columbia University. In backing racial preferences, he said he “can’t actually imagine a time in which the need for more diversity would ever cease. . . . The question is not when does [affirmative action] end, but when does it begin. . . . When do people of color truly get the benefits to which they are entitled?”
I submit that many Americans — regardless of race — are increasingly exhausted by what Chief Justice Roberts declared in 2006 was this “sordid business, this divvying us up by race.”
It’s clear where Eric Holder would take us — an endless fixation on race that inevitably brings its own racial discrimination. It’s clear Justice Sotomayor would take us in pretty much the same direction. She would just pretty up the “sordid business” by coming up with new euphemisms for it.
— John Fund is national-affairs columnist at National Review Online.