Photo: Supreme Court on Affirmative Action
The nation’s highest court weighed affirmative action once again on Tuesday, this time hearing arguments about whether voters should be allowed to ban consideration of race and other factors in public education and public employment.
In 2006, 58 percent of voters in Michigan approved a ballot measure—known as Proposal 2—to ban the use of race, ethnicity, gender and other factors in college admissions and public employment and contracting.
Eight states ban the use of race in public college and university admissions—in addition to Michigan, they are Arizona, California, Florida, New Hampshire, Nebraska, Oklahoma and Washington.
In Schuette v. Coalition to Defend Affirmative Action, Michigan Solicitor General John J. Bursch argued that Michigan’s constitutional amendment represents the desire of the people of Michigan “to move past the day when we’re only focused on race.”
Bursch said that while the benefits of diversity were not in dispute, the University of Michigan could use tactics other than affirmative action to improve diversity on campus, such as eliminating preferences for children of alumni and seeking out socioeconomic diversity.
Justice Sonia Sotomayor questioned Bursch about the impact of Proposal 2 on diversity on campus. Bursch said the number of underrepresented minorities dipped slightly in the first year after the change, but he said it is difficult to assess the impact in subsequent years because the university now allows students to select more than one race. Bursch said that in California, which banned affirmative action through Proposition 209, the number of underrepresented minorities increased at 16 of 17 public college campuses along with graduation rates for those students.
Sotomayor said the Supreme Court places a high bar for racially-based policies, but “What you’re saying is if all those other measures fail, you’re by constitution saying you can’t go to the remedy that might work.”
A number of the justices, including Chief Justice John Roberts and Antonin Scalia, asked questions that seemed to hint that they approved of the approach of banning racial preferences altogether. Justice Elena Kagan recused herself.