04/30/2014 01:40 pm ET Updated Jun 30, 2014

Schuette v. BAMN: How the Court Undermined Racial Liberty in the Democratic Process

The Supreme Court decision in Schuette v. BAMN upheldMichigan's 2006 ballot initiative (known as Proposal 2) that banned race-sensitive affirmative action in higher education. After Prop 2, state colleges and universities in Michigan can no longer determine whether to use race, sex, color, ethnicity or national origin in admissions. That decision resides instead with voters and can only be changed through a state constitutional amendment. As a result of the ban, minority enrollment in Michigan's public universities and colleges dropped by 25 percent, despite an increase in the number of college-ready African Americans throughout the state.

Critically, Schuette does not affect the continued constitutionality of race-conscious admissions policies in higher education in the vast majority of states that still permit it. That was resolved by the Court's decision in Grutter v. Bollinger and re-affirmed last term in Fisher v. University of Texas. As framed by Justice Kennedy's opinion in Schuette, the question rather was whether the Court should intervene in Michigan's ban by overturning it on federal constitutional grounds. Embracing "the right of citizens to debate," the Court concluded that the matter should be left to the voters, free of judicial interference. Any other result would infringe both individual and common liberty to shape public discourse.

But the Court's decision ignores the liberty stake that racial minorities have in the public process that decides the fate of affirmative action. As Justice Sotomayor passionately argued in dissent, the real question in Schuette was not about whether Michigan voters should be allowed to debate the merits of affirmative action. None of the plaintiffs disputed the legitimacy of public debate. Plaintiffs' claim rather centered on whether Michigan voters should have been allowed to change the political process in a way that selectively disadvantaged advocates of race-conscious affirmative action, who recognize that barriers remain in the area of equal educational opportunity and diversity. Prop 2 effectuated this disadvantage by removing racial considerations from the universities' jurisdiction over their own admissions policies and placing such considerations instead directly in the hands of voters. After Prop 2, university governing boards were free to ponder the legitimacy of other kinds of affirmative action -- based, for example, on legacy status or geographic preferences that favored students from underrepresented parts of the state. But race-conscious affirmative action (along with affirmative action based on sex, ethnicity, color, and national origin) was singled out for special treatment in the political process as were, invariably, the minority of voters who supported it. If anyone's freedom and liberty was at stake, it was the freedom and liberty of this group, who were forced to participate in a different political process than just about everyone else who wanted to lobby for particular admissions policies in state institutions of higher education.

Recognizing that this special rule affected racial minorities most acutely does not require much of a logical leap. Although diversity inures to the benefit of all students, minority students have an added stake in expanding access to institutions of higher education that traditionally have been closed to disadvantaged populations. Prop 2, therefore, effectively subjected minority voters to a more onerous political regimen than other voters who favored non-racial forms of affirmative action.

The Schuette opinion glosses over this important distinction, which imagines public discourse as a marketplace of ideas in which everyone is free to advance their views in order to persuade voters. But this perspective ignores the history of our nation. The dangers of tyrannical majorities were recognized by the founding fathers as a distinctive problem. Indeed, they structured our system of government to guard against the potential for this very kind of abuse. Perhaps even more significantly, the Schuette decision consciously ignores the history of race in the context of voting. As Justice Sotomayor's dissent powerfully reminds us, history is filled with examples of concerted efforts by white majorities to change the political process in ways that disadvantage people of color. Schemes have long existed to subvert the minority vote and prevent minorities from exerting their political power in ways that advance their interests. Indeed, the precedent that the Justices skirted in the Supreme Court ruling illustrates this point.

In this respect, Schuette is closer to the Court's decision last term in Shelby County v. Holder, which gutted a core provision of the Voting Rights Act that protected racial minorities from discrimination in the political process. Schuette purports to celebrate the importance of public debate, but, echoing Shelby, sanctions the segregation of minority voters within the democratic process in ways that diminish their meaningful participation. As Justice Sotomayor recognized, plaintiffs' claim in Schuette was not about guaranteeing affirmative action, but about guaranteeing fair play in the rules of democratic engagement. Schuette and Shelby send a disturbing signal that ensuring unimpeded minority access to the processes that decide minority interests is not worthy of federal judicial intervention -notwithstanding our country's long, sordid and, yes, continuing history of racial discrimination in voting. To be sure, Schuette does not close the door on affirmative action. But it turns its back on racial fairness in our democracy and, for that reason, the Court's decision is troubling still.