NRO Misinformation About Affirmative Action Crops Up In Supreme Court Oral Arguments


The National Review Online continues to misinform on a civil rights case in front of the Supreme Court, and its right-wing talking points on the supposed harm of affirmative action to students of color have now found their way into oral arguments by the conservative justices.

In an October 15 blog post discussing Schuette v. Coalition to Defend Affirmative Action, frequent NRO contributor Roger Clegg and attorney Joshua P. Thompson mischaracterized race-conscious admissions policies as a "racial preference" program for the unqualified. NRO has a long record of misinforming on affirmative action in general and Schuette in particular. Clegg and Thompson continued that trend in their piece, which recommended that the Court uphold a Michigan state constitutional amendment that effectively banned affirmative action by selectively making it more difficult for minorities to participate in the political process, a clear violation of decades-old precedent that prohibits this type of political restructuring. The NRO not only advocated for the conservatives on the Court to strike down these civil rights precedents, but to also reach beyond the four corners of the case and decide legal questions that aren't even at issue:

Today the U.S. Supreme Court heard oral argument in Schuette v. BAMN, a case in which a federal appellate court held -- astonishingly -- that Michigan voters somehow violated the U.S. Constitution's Equal Protection Clause by endorsing equal treatment for everyone regardless of race or sex.

At issue is Proposal 2 (the Michigan Civil Rights Initiative), a 2006 ballot measure that amended the state constitution to provide that state and local government agencies (including public 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 in the operation of public employment, public education, or public contracting."


[T]he Court should take this opportunity to make some amends to those who have been fighting for the principle of colorblind law but have been thwarted by bad judicial decisions. It can do so by reaffirming the strong presumption against any government use of racial and ethnic preferences -- not only in education, but also in contracting and employment, the two other arenas in which they are commonly found, and which are also addressed by Proposal 2.

The lower-court decision here complained that Proposal 2 makes it harder for some groups to lobby for preferential treatment. But the Equal Protection Clause is in the Constitution precisely because racial preference is not to be left to everyday politics, academic or otherwise. The United States has seen institutionalized discrimination in favor of whites be replaced with institutionalized discrimination against whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state and local actors.


It is not at all clear that Proposal 2 hurts African Americans (especially in light of the mismatch problem it removes -- that is, the fact that admitting students with significantly lower qualifications simply sets them up for failure since they are more likely to flunk out, drop out, get poor grades, and switch majors); and it clearly helps other minorities, like Asians, who typically are at the short end of preferences. And the logic of the Sixth Circuit's decision would also make it illegal to ban discrimination and preferential treatment through simple legislation, which would call into question a colorblind law like the 1964 Civil Rights Act, as well as state-constitutional civil-service rules.

Of concern is how the conservative misinformation advanced by NRO (and elsewhere by conservative Wall Street Journal columnist James Taranto) cropped up in the Schuette oral arguments. For example, in addition to the mistaken insistence that the U.S. Constituton is colorblind, the NRO also repeated the theory that those who get into elite positions through affirmative action, such as Justices Antonin Scalia and Sonia Sotomayor, are possibly doomed to failure. This "mismatch" argument as applied to higher education admissions, a favorite of right-wing media, has been widely debunked, but was still advanced at oral arguments by Michigan solicitor general John Bursch - and echoed favorably by both Chief Justice John Roberts and Justice Scalia.  

At the core of this mismatch theory is the idea that unqualified students are given "preferences." But for right-wing media like the NRO to even refer to affirmative action as a "preference" is troubling and misleading. In its line of cases delineating constitutional race-conscious admissions policies, the Court has consistently held that narrow affirmative action policies that view race as one of many factors in a holistic process are permissible. On the other hand, pure "preferences" have long been illegal in this context as the Court struck down racial quotas in university admissions in 1978, and the use of race as a tie-breaker in public high school assignments in 2007.

It's important to remember what Schuette is actually about. Even if affirmative action policies could rightly be described as "racial preferences," those policies are not at issue in this case. Schuette is a case about whether or not voters may place barriers between racial minorities and the political process, something the Court has long held violates the Equal Protection Clause.

There are actually two lawsuits at issue in Schuette that were involuntarily consolidated by the Court, and the NRO should be happy to learn that neither plaintiff is currently challenging Proposal 2's ban on racial and ethnic "preferences" in contracting or employment - only as it applies to college admissions. The "political restructuring" argument that won at the appellate level was crafted by the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund and, as reported by Reuters, this argument does not "ask the court to focus on blacks or Latinos hurt by the amendment, but rather to focus on the inequality of the process itself." This precedent, most recently endorsed by the Sixth Circuit, is an application of the Fourteenth Amendment's guarantee toward political equality, not racial equality.

Beyond that, it is quite clear that the effects of affirmative action bans have not been felt equally. California Attorney General Kamala Harris explained in an amicus brief that California's own constitutional amendment banning affirmative action had an "immediate and dramatic" effect on minority students, contrary to Bursch's representations at oral arguments as he defended the affirmative action ban. Officials from the University of California reported the decline in minority enrollment - especially at its flagship campuses -- in their own brief filed in a different affirmative action case:

In the immediate aftermath of [the affirmative action ban] becoming effective, the rates at which underrepresented minority students applied to, were admitted to, and enrolled at the University of California fell, often by very significant percentages, at every UC campus. In 1998, the first year in which race-neutral admission policies were implemented at UC, admission rates (i.e., the percentage of applicants admitted) for underrepresented minority students and the proportion that these students represented of the total admitted class fell for UC as a system and on every campus.

Other states with constitutional amendments that ban affirmative action have also reported a drop in minority enrollment in the aftermath of the ban, including Michigan, where enrollment of African-American students dropped 30 percent. But because of voter-approved state constitutional amendments, as the ACLU and LDF point out, minority students are unable to petition the relevant officials for a policy change without first seeking a new constitutional amendment that allows race-conscious admissions policies. No other group of students - athletes, those with "legacy" status, or children of wealthy donors - is required to take such an extraordinary step to have their voices heard.

Correcting the misinformation surrounding the Schuette case is extremely important. Without doing so, Americans may get stuck with a Supreme Court opinion based on right-wing media misinformation that could further alienate people of color from the democratic process and continue the re-segregating of higher education. 

Photo by Flickr user Alan C. 
Posted In
Racial Justice, Education, Justice & Civil Liberties
National Review Online
James Taranto
Courts Matter
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