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).