In the aftermath of the civil rights movement of the 1960s, many colleges and universities were under external pressure to admit African-Americans for the first time, or increase their numbers. Many African-Americans of my generation were the beneficiaries of race-conscious decisions, and our numbers, unarguably, contributed to the emergence of a Black professional class in the succeeding decades.
On April 22, 2014, voting 6 to 2, the Supreme Court in Shuette v. Coalition to Defend Affirmative Action upheld the voters in the state of Michigan who banned affirmative action in university admissions. Although this case dealt with university admissions, the voters also prohibited the state from considering race in public hiring and state contracts. Similar bans are in effect in seven other states.
The justices in the majority, while affirming the right of the citizens of Michigan to ban affirmative action, also stated that: “The case is not about the constitutionality or the merits of race-conscious admissions policies in higher education. Here the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences.”
Justice Anthony Kennedy in his concurring opinion with the majority summed it up this way: “The case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, addressed this issue directly in the opening lines of her passionate 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.”
Justice Clarence Thomas, the sole African-American on the court, voting with the majority, has long held the opinion that affirmative action policies hurt more than they help the recipients of affirmative action. Not surprisingly, the majority of African-Americans differ with this view. Ironically, Justice Thomas’s seat on the court was due to race-conscious decisions by President George Herbert Walker Bush who nominated him, and the Senate that confirmed his appointment.
While the Supreme Court reaffirmed Justice Lewis F. Powell’s conclusion in California v. Bakke that diversity is a constitutionally permissible goal it, nevertheless, sent a powerful message to the country endorsing exclusion instead of inclusion.
