Right-wing media are continuing to misinform about Schuette v. BAMN, the latest Supreme Court rejection of well-established civil rights law.
On April 22, in a splintered decision, the conservative justices of the Supreme Court effectively overturned decades of civil rights precedent and gutted a core component of equal protection law by reinterpreting the political process doctrine of the Fourteenth Amendment. This doctrine, based on Supreme Court cases from the civil rights era, prohibits restructurings of political systems to the specific detriment of a disfavored minority. The U.S. Court of Appeals for the Sixth Circuit found that the state of Michigan's 2006 ban on affirmative action violated this case law by removing this policy decision from the normal political system and writing it into the state constitution.
Contrary to right-wing media's framing of the case, Schuette was never about the propriety of affirmative action, although Michigan's ban has led to decreased minority enrollment and heightened racial tensions on campus. And as Justice Anthony Kennedy's controlling opinion in Schuette reaffirmed, race-conscious admissions policies in higher education remain constitutional. Still, Roger Clegg at National Review Online nevertheless called the case and its deleterious ramifications for the diversity of all future classrooms and students of color in particular “a big loss for racial preferences in the Supreme Court” and “a resounding win for the good guys.”
Fox News' senior judicial analyst Judge Andrew Napolitano took it even further, saying that “the elites who run university systems think they know better than the voters do.” When host Eric Shawn asked Napolitano about the precipitous drop in minority enrollment on Michigan campuses since the ban went into effect, Napolitano brushed him off, stating the Schuette decision “lets the voters go either way.” He went on to claim that race-conscious admissions were antithetical to “that thing the Civil War was supposed to have resolved” :
The Schuette case has dangerous consequences for the future of civil rights jurisprudence. In his concurring opinion, Justice Antonin Scalia seemed unbothered by the idea that voters are now free to place even more hurdles between minorities and the political process without constitutional ramifications. In fact, he appeared more than ready to scrap the modern foundation of equal protection law as “dictum” -- non-binding legal language.
Justice Kennedy's opinion for the conservatives was not as blatant in its open desire to overturn half a century of civil rights precedent, but the result is the same -- an “eviscerat[ion of] an important strand of our equal protection jurisprudence,” as explained by Justice Sonia Sotomayor in her scathing dissent. By ignoring the established precedent of the political process doctrine, Sotomayor pointed out the conservative justices are legitimizing a two-tiered system for those who wish to change the admissions policies in Michigan, with those who support race-conscious policies forced into the more difficult one.
The Schuette decision is yet another example of the Roberts' Court's inability or refusal to grasp the modern reality of race and prejudice across the country, and the ongoing efforts of universities to better prepare Americans for an increasingly more diverse society. Roberts and Scalia continue to twist precedent to advocate for the impossible goal of a “colorblind” society, with Roberts asserting that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” despite the fact that a majority of the Supreme Court still does not accept this sophistry. In her dissent, Sotomayor explained just how off-base Roberts and his conservative cohort have been on racial issues, with Schuette the most recent example:
[R]ace matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman's sense of self when she states her hometown, and then is pressed, “No, where are you really from?” , regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
But the consequences of this ahistorical approach that Sotomayor condemns on all Americans and minorities in particular doesn't seem to matter much to right-wing media, who are content that the civil rights community and students of color lost, and “the good guys” won.
Here are five things right-wing media aren't telling you about today's radical decision: