Democracy and Affirmative Action

Affirmative action supporters argue they should be free to establish the policy by amending state constitutions, but those who reject it should not.

The question of racial preferences in university admissions has bedeviled the nation for decades. In 2003, the Supreme Court finally issued a verdict that gave something to either side of the debate.

In a case involving the University of Michigan, it said public universities may not adopt rigid formulas to help one minority group or another—but may consider race as one factor in admissions as part of an effort to create a diverse student body. The decision had the distinct feel of a compromise.

There was one more element of splitting the difference: Though states could adopt these race-conscious policies, they didn't have to. Affirmative action for student body diversity was neither required nor forbidden. The Supreme Court left the decision to the states or their educational administrators.

So in 2006, opponents of racial preferences put a state constitutional amendment on the ballot to ban their use by Michigan's public universities. It passed with 58 percent of the vote. Democracy was put to work, and democracy produced a result that fell within the guidelines established by the Supreme Court.

Or appeared to. The advocates of affirmative action said otherwise. In their view, it didn't matter that the court allowed states to ban racial preferences, and it didn't matter that preferences were banned by a free and fair vote of the people of Michigan.

Opponents of racial preferences, in this view, may not amend a state constitution to forbid them. To do so violates the constitutional guarantee of equal protection by making it too hard for minority groups to get their way.

It was a strange and unconvincing argument on several grounds. The first is that it would create different rules for the two sides of the debate. Those who favor affirmative action would be free to establish it by amending state constitutions, but those who reject it would not. How is that "equal protection"?

The second oddity is the notion that banning race discrimination amounts to race discrimination. The Michigan amendment didn't say whites would enjoy preferential treatment and blacks would not. It said neither would. Instead, admissions would be color-blind. As a lower court judge wrote in this case, "A state does not deny equal treatment by mandating it."

Not every racial minority benefits from race-conscious admissions. When California abolished them, the number of Asian-Americans on state university campuses didn't fall—it rose. Setting a floor for African-Americans and Latinos put a ceiling on those of Chinese, Indian, Korean and Pakistani ancestry.

Racial "diversity" can be misleading. After the end of affirmative action in the California state university system, schools accepted more poor students than before. The kids of black doctors lost an edge. The kids of black janitors didn't.

The other problem with the critics' argument is that it implies there is something wrong with democracy—which, after all, is built upon majority rule. That's supposed to be a virtue: consent of the governed and all that.

For racial minorities, ballot initiatives have the advantage of spurring broad public debate, taking decisions out of closed rooms along the halls of power. The referendum process gives racial minorities the chance to confront the arguments of their opponents openly and build coalitions to prevail. Genuine racism does not fare well when forced to defend itself.

The fact that a group is a minority does not actually mean it will lose. A new Pew Research Center poll shows that 2 out of 3 Americans—and a majority of whites—support university affirmative action efforts.

Colorado is whiter than the nation as a whole, but in 2008, voters there turned down a ban on affirmative action. In 2003, Californians rejected a measure to prevent race-conscious policies by barring governments "from classifying any person by race, ethnicity, color, or national origin."

Justice Stephen Breyer, part of the court's liberal wing, noted that the Michigan measure took power away from unelected university officials and gave it to ordinary people. To invalidate the amendment, he said, would violate the constitutional principle that "favors decisionmaking through the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so it must give them the right to vote not to do so."

Democracy is not a perfect way to resolve complex policy issues that implicate competing and deeply held beliefs on every side. But it will do until a perfect way comes along.

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  • Dances-with-Trolls||

    it didn't matter that the court allowed states to ban racial preferences, and it didn't matter that preferences were banned by a free and fair vote of the people of Michigan.

    It's pretty simple, you just have to understand how the process works: We vote and vote and vote until they win and then it's settled.

  • Harvard||

    Except, of course, when we vote (overwhelmingly) to define marriage.

  • Tman||

    The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. Justice Harlan, dissent in Plessy v Ferguson

    http://chnm.gmu.edu/courses/nclc375/harlan.html

    This is where liberals/progressives and libertarians will never get along. They want to use the government to correct the errors from our past whilst ignoring the principles behind the constitution that allowed us to evolve in the nation we are today. Libertarians believe there is no need to stray from these principles. Little has changed in 130 years.

  • UnCivilServant||

    How long is it going to take for the grievence industry to die?

  • Pro Libertate||

    Until all social injustices, wrongs, inconveniences, and petty annoyances are remedied.

    Next up is a call for social justice for those of us descended from Homo sapiens neanderthalensis for the genocide perpetrated on our people by Homo sapiens sapiens.

  • RJ The Terrible||

    As a surviving member of neanderthalensis I want my free shit

  • C. S. P. Schofield||

    The grievance industry will never die, because a greivance does not have to be justified to exist.

  • Almanian!||

    I've asked when affirmative action can be ended. Clearly, the answer is, "Never". Which I already knew.

    Fuck the Wise Latina and everyone who thinks like her about this subject.

  • Rich||

    it didn't matter that preferences were banned by a free and fair vote of the WHITE people of Michigan

  • rickl7069||

    Yeah, I'm no fan of democracy either. HItler won with, what, around 98% of the vote. Fact is, if most of the people want it, it's probably the wrong thing. The people on the correct side of history usually prove to be, by far, in the minority.

  • OldMexican||

    Setting a floor for African-Americans and Latinos put a ceiling on those of Chinese, Indian, Korean and Pakistani ancestry.


    That's because the Chinese, Indian, Korean and Pakistani folks are all white!

  • MJBinAL||

    Dude, You gotta stop smoking that $hit! It clearly messes with your mind.

    There are no white people, just a huge variety of shades of tan!

  • rickl7069||

    And, as a roofer, usually by mid-summer I'm almost as black as the folks I work with. However, while I recognize little difference in color, I clearly recognize difference in culture - cultures were NOT created equal.
    My life's guiding principle is - leave people alone as long as they leave me alone. I believe that this would be a wonderful world if everyone practiced that. But, people don't, there is an unlimited number of people that know what is best for me and desire to use force since we I won't just obey willingly. These people have always existed and are the sole reason why the tree of liberty must be refreshed.
    You don't like that someone doesn't give enough - leave em alone. You don't like that they smoke plants - leave em alone. You don't like that they are racist, drink, take money for sex, etc. - leave em alone. It is their life, not mine. We are either the ruler and king of our little slice of land called our body or someone else is - I REFUSE to surrender ownership of my body to anyone else, NO one is going to tell me how to live my life - only God (and the true ruler - my wife, of course).

  • C. S. P. Schofield||

    The key here is that the minority advocates who want raciql preferences either believe that they will ALWAYS control the State that they propose to encourage in its discriminatory behavior, or they are opportunistic swine who are exploiting that blind spot in others.

  • buybuydandavis||

    These people aren't "minority advocates", they're advocates of empowering a Government right to impose institutionalized racism.

  • C. S. P. Schofield||

    Not all of tham. My take is that a bunch of them aren't that hinest, even with themselves.

  • buybuydandavis||

    "To do so violates the constitutional guarantee of equal protection by making it too hard for minority groups to get their way."

    No, it makes it too hard for Progressive Theocrats to get their way. It's the Progressive Theocrats who are calling for institutionalized racism.

  • C. S. P. Schofield||

    If it was JUST then, we'd have an easier time telling them to get stuffed.

  • C. S. P. Schofield||

    JUST them.

    Sorry about the spelling. i'm on my pad, and a poor speller to begin with....

  • Rob||

    Racial "diversity" can be misleading. After the end of affirmative action in the California state university system, schools accepted more poor students than before. The kids of black doctors lost an edge. The kids of black janitors didn't.

    This is always the problem with using racial preferences. It doesn't really address the real problem of equal opportunity. The University of Michigan's racial preferences didn't target low income minorities of Detroit or Flint (anywhere really). It greased the rails for kids coming out of upper-middle class and upper class families.

    There is a real dearth of opportunities for students and young adults coming from low income areas. I wouldn't have a problem with schools targeting people from economically depressed areas.

    Based on a quick peek at a report from the Kaiser Family Foundation the poverty rate for blacks and hispanics is approximately double that of whites in almost every state. By just targeting low income students schools would achieve a higher level of diversity.

  • Sevo||

    The problem is that most kids of low-income families can't hack the school work.
    So you can target them and then watch 'em wash out after a year or so; not my idea of a good approach.

  • Michael Ejercito||

    Were not Jim Crow laws a system of racial pereferences?

  • MaleMatters||

    You cannot imagine how much liberals perversely corrupted their own program, until you look at affirmative action beyond university admissions.

    Affirmative action has helped whites more than it has helped blacks.

    "Why affirmative action has failed black families" http://malemattersusa.wordpres.....-families/

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