Writes Jennifer Gratz, who was the plaintiff in the 2003 Supreme Court case challenging the affirmative action admissions policy at the University of Michigan. (She won. There was a second case, dealing with a more subtle/nuanced approach to affirmative action at the University of Michigan Law School. The plaintiff in that case, Barbara Grutter, lost.)
Gratz is writing now because the Supreme Court just granted certiorari in a case challenging the affirmative action policy at the University of Texas. She (or her ghostwriter) writes:
Before the court hears arguments in [Abigail] Fisher’s case, I hope the justices notice that a lot has happened since Gratz and Grutter were decided.Which way does that cut? The Supreme Court only said that affirmative action, done subtly, is constitutionally permissible. It doesn't say that it is required! If the people of a state don't like the policy, they are free to outlaw it as a matter of state law, as many states have done. Why would information about states opting out of a permissible policy provide the Supreme Court with additional reason why the policy should be seen as violating the U.S. Constitution? By permitting it but not requiring it, the Supreme Court leaves the policymaking to the states.
Immediately following the Michigan decisions, I uprooted my life, resigned from a great job in the software industry and started the Michigan Civil Rights Initiative, a statewide ballot initiative that asked Michigan voters to decide if race preferences should continue at the University of Michigan. Overwhelmingly, Michiganders voted to neuter O’Connor’s ruling in the Grutter case, making state-sponsored discrimination unconstitutional in the Wolverine state.
Arizona, Nebraska and New Hampshire followed Michigan’s lead and Oklahoma is poised to ban race preferences this November. A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters. California, Washington and Florida banned race preferences prior to the Michigan decisions.
It seems to me that the additional information Gratz presents is a reason to leave the constitutional law the way it is. The issue is being worked out in the political arena, the place where Gratz herself has been an effective participant. You can still say, as Gratz has always said, that the Supreme Court ought to perceive a right to be free of racial discrimination in admissions, that classroom diversity isn't the kind of compelling interest that can justify taking race into account as a university assembles a student body.
But right now, we have states free to use affirmative action (if they do it in a sufficiently subtle manner) and free to reject it. That many states have chosen to reject it exhibits our system of federalism at work. It doesn't bolster the argument that there is a right to be free of it! To say that, you'd have to assert that the political popularity of a policy somehow grows or hardens into constitutional requirement. But constitutional rights are what we need to protect us from the depredations of political majorities.
By the way, it's interesting that Gratz used the phrase "critical mass": "A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters." "Critical mass" was a key phrase in Grutter. The law school explained its interest in classroom diversity in terms of the need to gain a "critical mass" of students who were members of "underrepresented" minority groups. The term was "understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated... or like spokespersons for their race." One expert had testified that "when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no '"minority viewpoint"' but rather a variety of viewpoints among minority students."
Interestingly, the "critical mass" that the law school sought had to do with the value of different viewpoints, not the idea that if enough people thinkone thing then a point will be reached when everyone will tip into thinking the same thing. With the law school's notion of critical mass in mind, let's look again at the new information Gratz offers: "A critical mass, 27% of the population, now resides in states where race preferences have been banned by voters." That's good diversity. Good federalism. If the Supreme Court were to identify a constitutional right, it would require 100% of the states to adopt the same policy. It would be anti-diversity, anti-federalism, a choice for uniformity.
We're back to the question of what rights are, not what majorities want. If there really is a right here, then uniformity is the answer. The arguments about whether there is a right, however, remain the same. They are not bolstered by the waning political popularity of affirmative action.