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Summer 2014
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By Heather Mac Donald, Victor Davis Hanson and Steven Malanga

The Immigration Solution.

By Heather Mac Donald

Are Cops Racist?

Eye on the News

Heather Mac Donald
Majorities, Minorities, and Mismatches
The Supreme Court’s Schuette decision exposes the absurdity of racial-preferences jurisprudence.
6 May 2014
Official White House Photo by Pete Souza

In a victory for common sense, the U.S. Supreme Court ruled in late April that voters could require colorblind admissions to their state’s public universities without running afoul of the Constitution. Several of the justices arrived at this seemingly self-evident conclusion via tortured routes, however, and Justices Sotomayor and Ginsburg rejected it. Their opinions reveal the counterfactual condition of race jurisprudence today, while also unwittingly providing a rationale for knocking down academic racial preferences entirely. Sotomayor’s long, impassioned dissent opens a disturbing window into her racialized worldview and offers an example of what might be called the black-studies-ification of elite discourse.

The roots of the recent decision, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights . . . By Any Means Necessary (BAMN), were planted in 2003, when the Court upheld the use of racial admissions preferences by the University of Michigan’s law school. Preference opponents responded with a ballot initiative to amend the state constitution, prohibiting Michigan’s government from discriminating against, or according preferential treatment to, any individual or group based on race, gender, or national origin. The campaign over the initiative, Proposal 2, was highly visible and hard-fought, focusing primarily on the measure’s effect on admissions to the state’s public universities. Proponents of preferences, led by BAMN, argued that Proposal 2 would drastically reduce minority enrollment at the University of Michigan and that it was a thinly veiled excuse for racism. Voters rejected those arguments and passed the initiative with 58 percent of the vote in 2006. BAMN then sued to overturn Proposal 2 as unconstitutional. The group lost in federal district court but won in the Sixth Circuit U.S. Court of Appeals. Proposal 2’s backers appealed to the Supreme Court.

Schuette has been ridiculed by preference opponents for posing the question of whether the equal protection of the laws—i.e., race neutrality—violates the Fourteenth Amendment’s guarantee of equal protection. But even BAMN did not have the temerity to make so illogical a claim. Rather than arguing that a ban on racial preferences was unconstitutional per se, BAMN was forced to take up an arcane line of Supreme Court precedent that turned its complaint against Proposal 2 essentially into a quasi-voting-rights claim. It was the locus of decision-making, not the content of Proposal 2, that was unconstitutional, BAMN alleged. The proponents of Proposal 2 had denied minorities the ability to participate meaningfully in the political process, the group said, by resolving the question of racial preferences through a state ballot initiative, rather than at the university level.

This odd line of attack derived from the Supreme Court’s little-known “political process” doctrine, stemming in part from a 1982 case, Washington v. Seattle School Dist. No. 1. The Seattle City Council had passed a law requiring school busing to integrate local schools. In response, Washington state voters passed an initiative banning busing as a response to anything other than deliberate school segregation. Hearing a challenge to that initiative, the Supreme Court ruled that by moving the question of busing from a local to a state level, busing opponents had erected barriers to minorities’ right to political participation and had made it harder for them to defend their interests in the political arena, therefore denying them the equal protection of the laws.

The political-process doctrine is a jurisprudential disaster, made up out of thin air and shot through with unsupportable empirical assumptions—such as that higher levels of governmental organization inherently disadvantage minorities. The civil rights movement, after all, embraced the idea that the federal government was a better protector of minority rights than states or localities. Anti-preference voter initiatives failed at different stages in Missouri and Colorado, belying the claim that a voter referendum is stacked against minorities. Moreover, it’s preposterous to assert as a legal matter that a legitimate method of lawmaking suddenly becomes constitutionally infirm if a court deems its subject matter to be “racial.” The political-process doctrine is simply an ad hoc, desperate means of overturning on process grounds laws that a court couldn’t otherwise invalidate on their merits. And its application to the Michigan case produced several unintended consequences for preference supporters.

The threshold question for the political-process doctrine is whether a “‘racial’ issue” is involved, which the Washington v. Seattle court defined as one that “inures primarily to the benefit of the minority.” BAMN therefore had to assert that admissions preferences primarily benefited minorities in order to argue that the question of whether to use them was unconstitutionally taken to voters statewide, rather than remaining before the university’s Board of Regents.

But the Supreme Court’s previous justification for admissions preferences under the “diversity” rationale is that they benefit mostly the white majority, whose members would otherwise allegedly be clueless about how to talk to a black person. In fact, if preferences were designed primarily to benefit minorities, they would be unconstitutional under Supreme Court jurisprudence, as Justice Scalia pointed out in his concurring opinion in Schuette. Proposal 2 banned gender preferences as well, thus undercutting the conceit that it constituted an attack by the majority on the political participation rights of minorities—since females are the majority.

Most of the justices ignored these complications. But Justice Kennedy, writing the controlling plurality opinion (joined by Justices Roberts and Alito), noticed something in the political-process doctrine that is even more lethal to the Court’s preference jurisprudence. By requiring courts to determine whether a policy is a “racial issue,” the doctrine makes courts stereotype minorities, Kennedy wrote. The “racial issue” test presumes that all minorities share the same interests and same points of view, he said. But “it cannot be entertained as a serious proposition that all individuals of the same race think alike.”

Uh-oh. There goes the diversity rationale down the drain.

According to the Supreme Court, the only reason why schools should be allowed to discriminate against more academically qualified applicants in favor of less qualified black and Hispanic applicants is that those “underrepresented” minorities will bring otherwise missing perspectives to the classroom and cafeteria. But if each individual is in fact sui generis, then there is no reason to believe that selection by skin color will lead to a non-random introduction of additional viewpoints. The next case to challenge racial preferences should quote Kennedy’s words back to him as the death knell for the “diversity” conceit.

For the moment, however, Kennedy has at least allowed voters to order public officials not to use racial preferences in government action: “The holding in the instant case is simply that the courts may not disempower the voters from choosing which path [regarding preferences] to follow.” As for the political-process doctrine, Kennedy declared that it did not apply to Proposal 2, rather than overruling it entirely, as Justice Scalia urged in a scathing concurrence. Roberts and Alito presumably joined Kennedy’s often inscrutable opinion rather than Scalia’s far more persuasive analysis (the latter seconded by Justice Thomas) in order to keep the political-process doctrine on life support, in exchange for Justice Breyer’s joining the judgment upholding Proposal 2.

It would be comforting to believe, however, that Breyer could not have stomached joining Sotomayor’s hysterical diatribe against the American “majority” under any circumstances, even without the reprieve granted the political-process doctrine. Sotomayor’s dissent is a sort of coming-out party for her—her longest opinion yet, unusual in its length for a junior justice, and a demonstration of her philosophy that “race matters” when it comes to deciding cases. This was the judge, after all, who wrote in the Berkeley La Raza Law Journal in 2002 that a “wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Readers are clearly meant to see her dissent as the barely disguised, autobiographical cri du coeur of a “wise Latina woman” who has “lived” with majority oppression all her life. Unfortunately, her opinion demonstrates that alleged “richness of experience” is no guarantee of clear vision.

In Sotomayor’s America, a monolithic, unchanging white “majority” is forever seeking ways to oppress “racial minorities,” especially in the political arena. Sotomayor provides a potted history of such oppression through the ages: “At first the majority acted with an open invidious purpose . . . [briefly foiled by the Court], the majority persisted [by changing] the ground rules of the [political] process . . . [and in] 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.” Though Sotomayor pays lip service to the idea that “the majority’s” invidious discrimination of earlier eras differs from its present-day discrimination, her opinion constantly presupposes ongoing, animus-filled bias.

For Sotomayor, the political-process doctrine is the bare minimum that a righteous court needs to check the eternal conniving of “the majority.” To ignore the doctrine, she warns, “paves the way for the majority to do what it has done time and again through our Nation’s history: afford the minority the opportunity to participate, yet manipulate the ground rules so as to ensure the minority’s defeat.” Only a naïf would think that the Michigan residents who voted for Proposal 2 were simply expressing a desire for race neutrality. Sotomayor understands that they were in fact complicit in a historically charged effort to destroy minority political power.

Sotomayor’s Manichean worldview (and the political-process doctrine itself) collapses at the mention of one word, found nowhere (as Ilya Somin also observes) in any of Schuette’s five opinions: Asians. The application of the political-process doctrine to Proposal 2 assumes that racial preferences benefit “minorities” and are therefore opposed by “the majority.” But admissions preferences do the most damage not to the white majority, but to Asians, who are disproportionately excluded when merit-based admissions are compromised. A recent effort by California’s Latino Caucus to reinstate racial preferences at the University of California was foiled only by last-minute Asian organizing. Is one minority now oppressing other minorities? Sotomayor would be hard-pressed to explain this complication in her template of minority-majority polarization.

Asians are the most significant absence in Sotomayor’s dissent, but the concept of effort is a close runner-up. Sotomayor implies that blacks and Hispanics can do nothing to qualify themselves for the University of Michigan; racial preferences are their only hope for admission in the face of “the majority’s” intransigence. After Proposal 2, she writes, a “black Michigander . . . cannot lobby the board [of regents] in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.” Actually, a black Michigander can best enhance his children’s chance of admissions by drilling into them the value of learning and the importance of doing homework and paying attention in class—lessons that Asian parents inculcate in their children without surcease.

If Sotomayor’s gratuitous ramble through America’s long and allegedly ongoing history of discrimination reads like a black studies textbook (a spreading tic), her opinion also implicitly draws on the latest conceit in racial victimology: the concept of “microaggressions.” A microaggression is a form of bias so subtle that only its victims can see it—the last resort when you can’t find anything else in your world that even plausibly looks like discrimination. Echoing academic charlatan Cornel West, Sotomayor disgorges herself of a long, anaphoric passage on the various ways that “race matters.” “Race matters,” for example, “to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.” Perhaps this stranger was simply trying to be polite, however, or was eager to try out a second language. It takes a determined victim to see such behavior as seriously offensive.

Race also matters, Sotomayor proclaims, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Leave aside the question of whether being subjected to “snickers” is a constant condition of existence for “racial minorities,” as Sotomayor suggests. Nothing more sets one up for thinking “I do not belong here” than being admitted to a school because of one’s race, when the vast majority of one’s peers are significantly more academically qualified than oneself, as Roberts pointed out.

When it comes to condescending “judgments,” however, Sotomayor gives as well as she allegedly gets. Singling out Roberts, Scalia, and Thomas by name, she declares that her colleagues’ opposition to admissions preferences “reveals how little [they] understand about the reality of race in America.” (Sotomayor does not disclose how Thomas fits into her schema of oppressive racial ignorance.) Reviving Attorney General Eric Holder’s “nation of cowards” speech and playing off an earlier Roberts comment, Sotomayor calls for a national conversation on race: “The way to stop discriminating on the basis of race is to speak openly and candidly on the subject of race.” That intended conversation would likely not include the black crime rate that explains why someone may “tense up,” in Sotomayor’s words, as a black teen passes. Nor would it note that every “majority” institution in the country is trying to hire or admit as many “underrepresented minorities” as it can get its hands on, usually bending traditional hiring or admissions standards to do so.

Sotomayor’s hectoring proved too much for Roberts. “It does more harm than good to question the openness and candor of those on either side of the debate,” he wrote testily, after pointing out but a few contradictions in her rhetoric. Whether their exchange signals a more permanent tension is unclear.

Sotomayor’s vision of an endemically racist America is so all-encompassing that it must inevitably spill into other matters that will come before her, even those not explicitly tied to race. The Wall Street Journal’s Daniel Henninger points out that Sotomayor’s racial worldview underlies many Obama administration initiatives as well. But such a fantastically ungrounded understanding of reality is, if anything, more disturbing when lodged in an unelected judge, whose power, pace the “wise Latina” conceit, is supposed to rest on reason, not subjective experience and belief. Sotomayor may be in the minority on the court now, but that balance could change with a long enough run of Democratic presidents—sadly underscoring the importance of presidential elections for jurisprudence.

Meantime, Schuette’s tangle of opinions highlights the urgency of infusing mismatch theory into the racial-preferences debate. The absurd political-process doctrine could have been sidestepped entirely if it were understood that preferences are not on average a benefit to minorities, but actually make it harder for their targets to succeed academically. Nor do they foster “diversity.” Sotomayor’s air-brushed depiction of the power of preferential admissions to counter alleged racial stereotypes could not be further from the truth. Preferences allow universities, she writes, “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.”

To the contrary, preferences lead to less racial intermingling, not more. Preference “beneficiaries” drop out of science majors at high rates, leaving the STEM fields the almost exclusive domain of whites and Asians. And the social self-segregation that plagues many colleges is fueled by “diversity”-driven differences in academic preparation as well. If anyone is harboring negative “assumptions” about underrepresented minorities’ academic skills, the best way to confirm those assumptions is to admit students who are objectively underprepared. Thanks to the ubiquity of racial preferences, 50 percent of black undergraduates are in the bottom 20 percent of their class, and more than 50 percent of black law students are in the bottom 10 percent of their class, as Stuart Taylor recently pointed out.

Mismatch theory cuts through the murk of traditional equal-protection analysis. But until its insights are widely absorbed by the chattering classes, the next challenge to academic preferences should feature a highly qualified Asian student shut out of his first-choice school because he was allegedly not “diverse” enough. Let him remind the court of Justice Kennedy’s words: “It cannot be entertained as a serious proposition that all individuals of the same race think alike.”

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