By Richard D. Kahlenberg
In attending yesterday's oral argument in a case contesting Michigan's affirmative action ban, I was struck by the enormous evolution of the civil rights movement away from some of its original principles.
At issue in Schuette v. Coalition to Defend Affirmative Action was the legality of a state constitutional amendment, adopted by Michigan voters in 2006, by a 58-42% margin, which states, in part, that public colleges and universities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin."
Arguing that a referendum that bans racial discrimination and preferences is itself a violation of the U.S. Constitution's equal protection clause was always a stretch. Neal Katyal, a former solicitor general in the Clinton administration told USA Today that the lower court ruling striking down the referendum was "an indefensible decision." The liberal Slate writer Emily Bazelon called Schuette "the affirmative action case liberals deserve to lose." And the Obama administration, which intervened in last term's affirmative action case of Fisher v. University of Texas, did not participate in the Schuette case.
The oral argument in the case was sad to watch as it underlined the decline of this nation's heroic civil rights movement. At least parts of that movement have shifted from nondiscrimination to preference, from universality to particularity, and from a deep and abiding concern about class inequality to an almost dismissive attitude about its salience.
From Equal Treatment to Preferences.
The oral argument took place in the same Supreme Court building where the giants of the civil rights movement argued Brown v. Board of Education. In Brown, civil rights lawyers declared "that the Constitution is color blind is our dedicated belief."
Now the argument, advanced by the ACLU's Mark Rosenbaum, was still ostensibly about equality but in a very different form. Outside the courtroom, Rosenbaum declaimed, "We fought a civil war to say all races should be treated equally," but instead of taking this in a straightforward sense to mean that admissions officers should treat races equally, Rosenbaum meant, instead, we should all have the equal right to fight for preferences. Just as alumni can push for special preferences for their children, so should minority parents, Rosenbaum suggested. It did not seem to occur to him that another alternative would be to make both skin color and legacy status irrelevant to who gets ahead.
From Civil Rights for All to Civil Rights for Some.
One of the great contributions of the civil rights movement was its strong commitment to civil rights for all Americans. The Civil Rights Act outlawed racial discrimination toward anyone, of any race; and the Equal Protection Clause of the Constitution also was written in universal terms.
Even affirmative action has been justified as a program with universal benefits; black and Latino students are given additional opportunities, but white and Asian students learn more in integrated environments so everyone benefits.
But yesterday afternoon, Shanta Driver of the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), articulated a very different vision. The purpose of the 14th amendment, she said, "is to protect minority rights against a white majority." Discrimination, she said, is determined "by power, by who has privilege in this society." Asked by Justice Antonin Scalia to cite a single case in which the Supreme Court had taken this particularistic view of the 14th amendment, she conceded, "No case of yours."
A Shrinking Concern about Economic Inequality.
Perhaps most troubling was the attitude of civil rights lawyers and at least one liberal Supreme Court justice on the importance of addressing class inequality. This was once a hallmark of civil rights movement. Dr. Martin Luther King, Jr. was always a strong proponent of labor unions and toward the end of his life launched a Poor People's Campaign, which he called his "last, greatest dream." More recently, John Brittain, the former chief counsel of the Lawyers' Committee for Civil Rights, pointed out that legacy preferences for the children of alumni were unfair to poor people as well as to people of color.
John J. Bursch, the Solicitor General for the state of Michigan brought up the class and legacy issues in response to Justice Sonya Sotomayor's claim that the affirmative action ban had segregated the University of Michigan.
Bursch noted that, in fact, the initial drop of under-represented minorities was minimal (from 10.75 percent to 10.25 percent), and that more severe drops came after Michigan, following U.S. Census guidelines, began allowing students to check multiple boxes for race and ethnicity. (The federal rules, according to one study of 31 colleges, meant that the proportion of students classified as black would decline from 5.3 percent to 4.1 percent, without any changes in racial preference policies.)
But Bursch's central response was that "there are other things that the University of Michigan could be doing to achieve diversity in race-neutral ways." They could eliminate legacy preferences, he noted. And, citing an article I wrote for the Wall Street Journal, Bursch noted that Michigan could do more to admit low-income students of all races. Busch cited the article's data showing that the number of students eligible for Pell grants at the University of Michigan at Ann Arbor is one half that at other universities employing race-neutral strategies such as UC Berkeley and the University of Texas at Austin.
Astoundingly, Justice Sotomayor made an ad-lib defense of legacy preference. "It's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away [with] that preference for them. It seems the game posts keep changing every few years for minorities."
As Brittain's research found, however, even with affirmative action, it is whites who disproportionately benefit from alumni preferences. And shouldn't liberal justices and civil rights attorneys be arguing for an abolition of this form of affirmative action for the rich? Outside the court room, Rosenbaum claimed Michigan administrators "are breaking their backs trying" to find race-neutral means to boost minority enrollment, even though the data show that Michigan's 15% Pell numbers are well below that of numerous other highly competitive universities.
Richard D. Kahlenberg is a senior fellow at the Century Foundation in Washington, D.C.
(Photo Credit: Christian Science Monitor, Joshua Roberts/Reuters)