Whatever You’ve Heard Affirmative Action Remains a Legitimate Tool

by Dave Schuler on April 23, 2014

I suppose the howls of outrage at the Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action yesterday should have been expected. For a good plain English of the decision see here. I think that James Taranto’s summary of the four contrasting positions taken by members of the court is interesting.

My own view is that Justice Breyer has it pretty much right. In cases in which affirmative action is being taken neither by the voters nor state’s legislators nor the courts but by unelected school administrators the voters of the state have the power to reverse those administrators’ actions.

The editors of the New York Times take a somewhat different view:

Justice Anthony Kennedy, writing for a three-member plurality, sided with the voters, who he said had undertaken “a basic exercise of their democratic power” in approving the amendment. He cautioned that the ruling took no position on the constitutionality of race-conscious admissions policies themselves. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

Not so, Justice Sonia Sotomayor responded, in a stinging 58-page dissent. “Our Constitution places limits on what a majority of the people may do,” she wrote, such as when they pass laws that oppress minorities.

That’s what the affirmative action ban does, by altering the political process to single out race and sex as the only factors that may not be considered in university admissions.

While the decision expressly did not declare affirmative action unconstitutional, it may have dealt a severe blow to something called “political process doctrine” and that’s what I think the editors are alluding to. If the dissent had prevailed it would have meant that once affirmative action had been put in place for whatever reason, there would be no way to remove it except, possibly, by court order.

Intervening in a similarly predictably heated comment thread in a post on the decision, James Joyner remarks:

The lack of social mobility for poor and otherwise disadvantaged students, who are disproportionately black and Hispanic, is a real problem that should concern Americans of all races and political ideologies. I’m an opponent of state institutions giving preferential treatment on the basis of race alone for a variety of reasons, not least of which is that it’s increasingly anachronistic nearly seven decades after Brown vs. Board of Education and nearly half a century after the Civil Rights Act of 1965.

I don’t think it’s quite right that “we spend more money on the education of well off white kids.” Rather, we spend more money on the education of well off kids, who are disproportionately white. Nowadays, while race of course remains an issue, it’s quite possible that parental and community social class is a bigger issue in terms of children’s achievement. Indeed, while race per se is undeniably much less of a barrier to success than it was half a century—or, indeed, a quarter century—ago, we’re seeing a steady decline in social mobility. Increasingly, demography is destiny.

I would go farther than that. I think we should be able to devote the resources necessary to helping students both on the basis of family income and race. And we still can. Advocates for such intervention need to persuade their legislators or a majority the voters rather than just a few school administrators and trustees.

I would also add that higher education is a lousy place on which to focus our attention. We would be much better off concentrating resources on K-12.

While I would never claim that money is the sole solution to the problems of our public education system, I think it does make some difference. Consider the variations in per pupil spending here in Illinois. The lion’s share of funds for public education comes from local governments here in Illinois rather than the state (Illinois is 50th among the 50 states in the state’s contribution to public education) and most of those funds come from property tax revenues. Consequently, the value of property has an enormous influence on how much is available to fund public education. That means that per pupil public school spending is effectively proportional to family income.

Adjoining Evanston spends roughly 50% more per elementary school student than Chicago’s District 299 does. That means that Evanston can attract better teacher and administrators and afford to maintain its facilities better than Chicago can. That Chicago could offset Evanston’s spending by increasing its sales or property taxes is a blithe assertion that I do not believe stands up to scrutiny. Chicago already has the highest sales taxes in the state and raising Chicago’s property tax rate would be as likely to drive people and businesses out of Chicago as it would raise revenue.

What, then, should be done? The solution must come from the state and heretofore the state has refused to act.


Ilya Shapiro summarizes the decision:

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

{ 30 comments… read them below or add one }

... April 23, 2014 at 10:13 am

in a stinging 58-page dissent.

How stinging can a 58 page legal document be? When was the last time a bee ever took 58 pages to sting someone?

I think the writer needs to re-read Orwell on language.

... April 23, 2014 at 10:18 am

To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless.

Um, isn’t that what emanations and penumbras are for?

... April 23, 2014 at 10:21 am

I’ll also make the unpopular point that spending more on people that can do more makes sense. For example, I wouldn’t want to spend lots of money sending a quadriplegic to top notch tennis trainers. Similarly, I wouldn’t want to send someone with a sub-100 IQ to a tech magnet school.

But that is a very unpopular position to take (publicly) these days, though one can seen from the actions of better-off parents that the vast majority of them agree with that concept even as they have their daily hate against anyone that speaks out publicly.

Shorter: As I always say, if you want better education outcomes, get better students.

Dave Schuler April 23, 2014 at 10:29 am

though one can seen from the actions of better-off parents that the vast majority of them agree with that concept

I don’t think that’s what the evidence supports. I think the evidence suggests that better-off parents support spending more on their own children regardless of their abilities.

The heart of the public school system is that all children are our children. When all Yale grads are the children of prior Yale grads and marry other Yale grads it tends to erode that understanding.

PD Shaw April 23, 2014 at 10:53 am

I didn’t read the decision, but have read enough summaries to know its procedural issues are more boring than the larger issue about whether there is a proper role for affirmative action since Brown v. Board of Education. On the larger issue, the SCOTUS has tended to divide into three camps:

*Race is an impermissible consideration in college admissions. This is the position of Scalia and Thomas, but when the court was more liberal in the 1970s, it probably commanded four votes, including Justice Stevens.

*Race can be used as a factor in college admissions for purposes of promoting a racially and culturally diverse student body. This is the position of Kennedy, Roberts, Alito, Breyer, and possibly even Kagan (who recused herself). This was the opinion of one Justice Powell back in the 70s, and has become accepted precedent by the majority of the court. The debate among this group is how strictly the courts will scrutinize a diversity program as actually promoting diversity in the least intrusive fusion. Conservatives will scrutinize, and liberals will largely defer to the political branches.

*Race can be used by states to remedy a history of past discrimination. This appears to be the position of Sotomayor and Ginsburg, and most supporters of some form of affirmative action. Like the conservative position, the liberal position once held the support of four justices, but for the last thirty-plus years it is the diversity goal which is where cases are decided.

“Diversity” is a compromise position that really does not satisfy many people. To me “diversity” refers to the value a majority receives from interaction with minorities, whether or not that minority has been a victim of a history of past discrimination. Encouraging a Nigerian born student to enroll in the University of Michigan’s engineering program is about diversity, not remediation.

... April 23, 2014 at 11:05 am

I don’t think that’s what the evidence supports. I think the evidence suggests that better-off parents support spending more on their own children regardless of their abilities.

That’s true, but one can also see that they approve of the larger concept as well. Thus the support for (and especially the selling of) the concept of magnet schools among the middle class. They’re willing to spend more on (and of!) other people’s children as well if that means surrounding their own children with a better class of class-mate.

This is also the concept behind private schools. The uber-rich especially could afford to hire tutors that would teach little Apple and Brie everything they need to know academically as well as any private school. But the schools are also about surrounding their children with a certain class of people, as well as a large measure of class-signaling.

... April 23, 2014 at 11:09 am

That second parenthetical should be “and of other people’s money!”

Jimbino April 23, 2014 at 1:09 pm

I was able to game the Affirmative Action system at UT Law. Though I’d entered as a normal white, blue-eyed Irish lad, I soon found out that I qualified for the “Hispanic Scholarship,” by virtue of my having been born in Paraguay.

Of course, I took th;e scholarship. But my principles required that I rub the Liberal Noses in it.

PD Shaw April 23, 2014 at 2:57 pm

I attended a school with affirmative action preferences that sought to mimic the general population. The Latinos were mostly Cuban-Americans from South Florida, who were often unrecognizable to me as such. My closest Cuban-American friend looked liked an Irishman; a few pounds and middle age he would have looked like a Chicago cop.

And then there were “white” exchange students from Latin America, from places like Chile and Argentina, who very likely came from families that enjoyed higher socio-economic status by preserving a “White” or “Spanish” identification within the Casta system. There is some irony in helping descendants who may have benefited from a racial caste system. But its diversity.

michael reynolds April 23, 2014 at 3:04 pm

The problem is largely in the funding source. Rich people have expensive homes, expensive homes carry high property taxes, high property taxes funnel money to schools.

Push more of the funding through the state and less through the town or county and you equalize that a bit. Make it national and you equalize it entirely.

Of course there’s zero chance of that happening because part of the reason real estate is expensive is because nice homes = good schools. If nice homes = same schools as everyone else, the nice home becomes comparatively less attractive. People love status. There’s just got to be someone relatively worse off. It’s not enough that you succeed, someone else must fail.

Race comes into it, inevitably. It is very important to human beings to be able to feel superior. Poor or working class southern whites, and non-southern whites as well, typically believe that their own low economic status is tolerable because at least they’re better off than the Other. And of course the powers-that-be have played on this since slavery days because it keeps poor whites docile. So long as they have someone to look down on they remain easily-sheared sheep.

So if you ask a working class white guy in souther Indiana if he wants a better school, he’ll say sure. If you tell him it’ll mean higher property taxes on people who are better off, he’ll say okay. Tell him it will also mean elevating the black school nearby to parity, and he’ll say no way. Even if he’s not the guy paying the taxes. Race isn’t just the tool for white power to keep blacks down, it’s also the tool to keep poor whites down, the difference being that at least the black guy knows the game.

There’s a whole lot of stupid in this country that grows from the need of one economic loser to feel superior to the next economic loser. For Americans equality always goes up the chain, never down. You want to be equal to the guy who is better off than you. You don’t want the guy below you to have the same equality.

Dave Schuler April 23, 2014 at 3:11 pm

PD Shaw:

That’s one of the persistent problems with affirmative action for the purpose of redressing historical injuries. Rather than actually giving a hand to somebody whose great-great-grandfather was a slave it disproportionately benefits Caribbeans or Africans. The reason for that is easy: they don’t have the problems we’d like to reduce.

The sad reality is that history is history and you can’t step in the same river twice. We cannot make up for historic wrongs. Their perpetrators and their victims are all dead. Inflicting new injuries in the name of redressing old grievances does not increase the total amount of justice.

What we need to do is take a day-forward approach and address the problems we have right now.

jan April 23, 2014 at 3:14 pm

Race has been used by many multi-racial students, to their advantage, in order to get into college. A neighbor’s son even used his 1/16th Indian heritage to, as Jimbino phrased it, “game” the system. However, using nationality as a “college in” doesn’t earn my support.

Rather, special circumstances of someone trying to get into college, is something more deserving to consider — not what hue their skin color is. There are young people, yearning for and working to get into college, who have overcome daunting odds, but don’t have the resources to pay for college. Their efforts, along with scholarship, IMO merit special attention and benefits in helping them achieve such a college education.

Jimbino April 23, 2014 at 3:21 pm

Yes, Dave Schuler.

The problems we have now are neither the problems of the dead nor the problems of the yet unborn.

Just as we shouldn’t squander our wealth trying to solve problems of the dead, we shouldn’t be squandering our wealth trying to solve the problems of the yet unborn, who need not be born.

Promote childlessness!

Dave Schuler April 23, 2014 at 3:22 pm

As I’ve said, I think that focusing on higher education is futile. It’s based on a cargo cult mentality: because people with high status and incomes have college educations if you get a college education you’ll have high status and income, too.

The problem with that is that historically a college education was a indicator of status rather than conveying it. When everybody has a college education the marker will change to something else, post-graduate degrees, maybe. When everybody has those it will be something else.

Trumwill April 23, 2014 at 3:32 pm

One of my best friends was a Cuban-American. He made good grades at a great school. He was getting offers from colleges all across the country. The University of Oregon, for example, offered to waive out-of-state tuition. The University of North Dakota called his house. He has no ties to either university or either state.

It was hard not to escape the impression – and it was very much his impression – that his key selling point was the ability to check a box that allowed the university to make it look like they have a stereotypical Latino from LA or somesuch instead of a wealthy Cuban-American kid from the suburbs in the South.

All that said, I am on the borderline on affirmative action as a whole. I’m a little bit against it in the overall (I was actually convinced through various conversations with Asian-Americans, and some less fortunate whites), but can’t muster up much ability to care. Before my shift, I was in favor of affirmative action with about the same degree of (un)enthusiasm.

Trumwill April 23, 2014 at 3:37 pm

I find the funding issue interesting. Mostly because, back home, it didn’t come out at all like you would expect it to. My own (very well-to-do) district spends quite little. Less than the state average and a lot less than the national average. The nearby urban district spent considerably more. The districts from the poor part of the state often spend even more.

Which makes sense, when you think about it. Even equal funding isn’t close to sufficient. My own district is relatively inexpensive to run because of who our parents were. Others needed ESL teachers, hot lunch programs, and so on. So the disparity is not exactly unexpected. Even so, the conversation back there tends to be the same as it is here: the assumption that funding is unequal due to property taxes of the wealthy and poor.

Trumwill April 23, 2014 at 3:47 pm

I should add that my previous comment is not to suggest that Schuler’s numbers are wrong or misleading. I can’t speak for a lot of the country. Different funding systems can lead to different results.

Back home, we have independent school districts that assess their own tax rates. So the result is that wealthy neighborhoods often have considerably lower property tax rates, which is how their schools end up comparatively inexpensive despite higher property values. I don’t know how it works elsewhere.

I’m definitely cool with equalizing funding where actual disparities can be pointed to (like Evanston and Chicago, apparently). I am also in favor of unequal funding where warranted. I’m a bit skeptical that’s going to get us very far in the greater scheme of things.

jan April 23, 2014 at 4:08 pm

Race isn’t just the tool for white power to keep blacks down, it’s also the tool to keep poor whites down, the difference being that at least the black guy knows the game.

People ascribing to so-called white power rhetoric, feed into the policies and belief systems that continue to enable racial divisions within this country. IMO, racial animus is diminished, not by indefinitely keeping in place policies promoting unequal perimeters for races, but instead by laws calling for all people to be treated with equal respect, dignity, and opportunity — period!

You want to be equal to the guy who is better off than you. You don’t want the guy below you to have the same equality.

That is one cynical POV!

michael reynolds April 23, 2014 at 4:24 pm


Have you met any actual human beings? It’s not cynicism, it’s anthropology.

You know what the basis is for the Constitution? “You can’t trust anyone, ever, so split the power up into little pieces and set the pieces in opposition.” Cynicism.

You want idealistic? Marxism. “From each according to his ability, to each according to his need.” That’s idealism.

One was written by a bunch of lawyers, farmers, slave-drivers, shop keepers and traders. The other was written by an intellectual. The constitution worked in large part because the Founders had a clear-eyed view of humanity.

michael reynolds April 23, 2014 at 4:31 pm

By the way, a FOIA request for Think Progress pretty much kills off the alleged IRS conspiracy. http://thinkprogress.org/politics/2014/04/23/3429722/irs-records-tea-party/

Poor Republicans. Just cannot catch a break on the scandal front.

PD Shaw April 23, 2014 at 4:32 pm

@Trumwill, your specific examples of state recruitment were interesting. Oregon and North Dakota are very white states. Under a “diversity” justification, they may have the most reason to recruit people of color, but they probably lack any significant history of discrimination. On the other hand, the University of Alabama was the site of George Wallace’s infamous Stand in the Schoolhouse Door. Today, 1.9% of Oregon’s undergrads are black, while 12.9% of Alabama’s undergrads are black. And I’m guessing that Oregon spent a lot to recruit its small percentage, while Alabama probably did nothing.

PD Shaw April 23, 2014 at 4:34 pm

FN. Alabama probably did nothing other than prostrate its educational programs to football.

PD Shaw April 23, 2014 at 4:49 pm

“As I’ve said, I think that focusing on higher education is futile.”

Even odder to me is that many of the affirmative action lawsuits arise from post-undergraduate school, particularly law schools. The “diversity” justification appears to be an idealized reflection on the education most justices received in a liberal arts degree — young people away from home for the first time, meeting new people with new experiences, hanging out in student housing, and learning foreign languages just for the sake of broadening one’s horizons. Law school isn’t like that, and I doubt other post-undergrad education is like that either. Everybody’s older, their interests and disciplines have narrowed immensely.

... April 23, 2014 at 5:08 pm

By the way, a FOIA request for Think Progress pretty much kills off the alleged IRS conspiracy.

Which explains completely the IRS stonewalling Congress (you know, their BOSS) and the person at the center of the scandal claims that if she testifies honestly she will go to prison for having acted in an illegal manner. Yeah, there can’t possibly be anything wrong here.

michael reynolds April 23, 2014 at 5:15 pm


Would you give testimony in front of a hostile committee run by a partisan fanatic with no regard for the truth and do it without immunity? If you did you’d be a fool. My lawyer would wrestle me to the ground before he’d let me do it.

One of the BOLO terms was “Blue.” They targeted more progressive groups, more pro-pot groups and more Acorn successor groups than they did Tea Party groups. Like I said, too bad for the Obama haters. Another non-scandal bites the dust.

michael reynolds April 23, 2014 at 5:18 pm

Oh, and the Syrian chem weapons deal you and everyone else here bwah hah hahed away? Turns out it worked. The Syrians just turned over the last of their stocks.

And the Iran deal is still working. Iran is complying. That would be the deal worked out by John Kerry, who you and the rest of the Eye Glitterati dismiss as a moron.

... April 23, 2014 at 5:19 pm

jan, note that Reynolds always imputes the worst of motives to poor and middle class whites. But you will never here him mention that it is important for the self-esteem of successful Jewish kids lit authors to make certain that poor whites remain that way, that middle class whites be made poor, and both are always demonized in all things.

... April 23, 2014 at 5:27 pm

Sure, Reynolds, no Democrat has ever, under any circumstances, ever been anything but the epitome of propriety.

Seriously, you criticize the Republican Party as though they were worse than al Qaeda (I remember your claims that Bush II was going to overthrow the government and declare himself President for Life back in 2006), but you never, not under any circumstances, admit that any Democrat is anything less than completely saint-like. I have also never seen you admit that any Republican is anything less than completely dishonest and evil. Seriously, when you talk about Republicans you sound like Hitler talking about the Jews, except that Hitler allowed that the Jews had some cunning about them.

Goddamn, it would be funny if it weren’t so pathetic.

Will Truman April 23, 2014 at 6:19 pm

That CAP report contains some interesting information but does not actually demonstrate what the title and lede suggest it does. But that I expect Team Blue cheerleaders to care.

jan April 23, 2014 at 6:51 pm


Most human beings I know and have met don’t discuss “white power,” and other alienating subject matters. Instead, we discuss jobs, families, food, health, latest joke etc. Currently, my broken ankle is a hot topic of mine. Generally, though, conversations center on people, places, and things, with no one separating their identities into racial categories, even though our ethnic make-up may be all over the map.

Consequently, I neither relate to nor understand people like you having such harsh tones towards home-grown concepts you hold about others. Sometimes I think if you suddenly had an earth-shattering epiphany, debunking some of your strong assumptions and beliefs, you would actually be disappointed that people weren’t as bad as you thought they were.


Michael pigeon-holes people into categories and sub-sets. He then assigns those categories with good/bad traits, and works his posts according to these descriptions. Consequently, such a subjective view of the world makes it difficult for him to see beyond what he is predisposed to believe or see.

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