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Justice Sotomayor issues strong dissent in affirmative action case

US Supreme Court Justice Sonia Sotomayor smiles as she speaks at Yale University, Monday, Feb. 3, 2014, in New Haven, Conn. Sotomayor, who grew up poor in the Bronx, described how she navigated new worlds making into Ivy League universities and then onto the nation’s highest court.  (AP Photo/Jessica Hill)

US Supreme Court Justice Sonia Sotomayor smiles as she speaks at Yale University, Monday, Feb. 3, 2014, in New Haven, Conn. Sotomayor, who grew up poor in the Bronx, described how she navigated new worlds making into Ivy League universities and then onto the nation’s highest court. (AP Photo/Jessica Hill)

On Tuesday, in a 6-2 ruling, the United States Supreme Court upheld Michigan’s constitutional amendment banning affirmative action. What follows are excerpts from Justice Sonia Sotomayor’s 58-page dissent.

‘We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do.

. . . To know the history of our nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.

At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain states shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right.

The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted.

This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration.

Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.

This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.

Prior to the enactment of the constitutional initiative at issue here, all of the admissions policies of Michigan’s public colleges and universities – including race-sensitive admissions policies were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections.

After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity.

. . . In the wake of Grutter v. Bollinger, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies.

Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies.

When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages – and indeed, depends on – that type of democratic action.

But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.

. . . Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible.

. . . The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities.

The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success.

Today, the Court discards that doctrine without good reason.

In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected university boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational decisions.

. . . Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.

I respectfully dissent.”

Legacy Comments1

This is a political evaluation, this is not a valid interpretation of the Constitution. For one, I am sick and tired of having to walk on eggshells as people are hired due to the color of their skin or gender. It is not fair. Those who feel that affirmative action is so wonderful are the same people who do not want to focus on race or gender.....but they do, to the exact opposite side. Not only that, will the Monitor editors share the opposite side of the argument with the readers and give the same space in this newspaper. I might remind the editors that newspapers are our last defense agains tyranny and the "watchdog" for the people over the government and their practices. Instead, the Monitor seems to be the "lapdog" of the polticians, government and a certain ideology.

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