Universal Rights – An Alternative to Affirmative Action – Further Undermined by U.S. Supreme Court in Michigan Case

Posted May 7, 2014

MP3 Interview with Jamie Raskin, professor of constitutional law at American University, a Maryland state senator and a senior fellow at People for the American Way, conducted by Melinda Tuhus


On April 22, the U.S. Supreme Court upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities. The 6-to-2 ruling effectively endorsed similar measures in seven other states and may encourage additional states to pass new laws banning consideration of race in admissions policy.

This is the third affirmative action case from the state of Michigan to be decided by the Supreme Court. In 2003, the court struck down a plan from the University of Michigan undergraduate college in which a point system gave specific “weight” to minority applicants, but the court upheld the University of Michigan law school’s policy because it was more generalized. Then conservatives in Michigan pushed through an amendment to the state constitution forbidding any consideration of race in the admissions process. That referendum question was approved in 2006 with 58 percent of the vote. But the amendment was challenged by a coalition of student and minority rights groups, who won their case at the appellate level, but lost in this recent Supreme Court ruling.

Between The Lines' Melinda Tuhus spoke with Jamie Raskin, a professor of constitutional law at American University, a Maryland state senator and a senior fellow with the group People for the American Way. Here, he talks about the significance of this latest high court ruling and suggests alternative methods of rectifying historic discrimination.

JAMIE RASKIN: Essentially what the court has done is to say affirmative action and the use of race in admissions or in hiring can be forbidden by a state by virtue of a state constitutional amendment or even just by virtue of state law. What the court has said is that if a state wants to use affirmative action within the strict limits it has imposed in the past may do so, but who wants to forbid the use of affirmative action, it can forbid it, too.

BETWEEN THE LINES: I've read that the percentages of black and Latino students at least in the more prestigious universities has dropped significantly since some of these other affirmative action restrictions have been put in place. So these cases have a real world impact.

JAMIE RASKIN: The withdrawal of affirmative action has meant that the numbers of minority students at the most selective universities and colleges has plummeted. On the other hand, in Texas, after their racial and ethnic-based affirmative action plan was struck down, they moved to a different plan that guaranteed admission to the University of Texas and other state universities and colleges to the top five percent of the graduating class in each high school all over the state, so that guaranteed a kind of geographic distribution that allowed for diversity. So there are other mechanisms that states are starting to put in place to deal with both state laws that are hostile to affirmative action and to this Supreme Court decision.

BETWEEN THE LINES: Jamie Raskin, Over the course of all the decisions on affirmative action over the decades, how far-reaching is this one, do you think?

JAMIE RASKIN: Most of the main damage had already been done; there's not much left of affirmative action. The court permits generally, state universities and colleges to have generalized kinds of targets, but you can never make a difference in a particular case and it can't be quantified and you can't set aside certain numbers. There is a movement to try to get colleges and universities to engage in affirmative action based on economic disadvantage, which obviously would help to lift up a lot of racial and ethnic minorities, as well as poor and working class white people. In general, I think progressive movements are focused now on questions of student debt and how to make college more affordable for everyone. And in some sense, these questions may be more congruent with what the original civil rights movement was more interested in, which was dramatic changes in people's access to people's higher education and to jobs.

There may be a way in which the right-wing assault on affirmative action – which is ferocious and unremitting – could lead us to go back to the demand for universal rights and benefits and entitlements in the educational field. The Supreme Court's decades-long attack on affirmative action, which is the mildest and most modest of remedies and concessions to the civil rights movement historically, now may be the occasion for people to say, let's go back to what the original demands were of the civil rights movement, and, for example, in Europe today, everybody has the right to a college education. Once you get in, it's tough, you have to work hard and so on, but everybody has a right to go, and that's something that could be put on the table today, just like universal health care could be put on the table today.

So instead of beginning with the idea of scarcity and dividing up a scarce resource according to some racial or ethnic criterion, instead start with the assumption that everyone should have access to health care, everyone should have access to college education if that's something they want to do.

What we have today is a Supreme Court that is very hostile to the Reconstruction amendments, specifically the 14th amendment and equal protection, which was not just about the formal treatment of people as equals, but it was about actually changing a profoundly racist society and trying to redistribute wealth, power and social opportunities to people who had been marginalized and oppressed by law and by social conventions for centuries.

BETWEEN THE LINES: There's a certain stigma for people of color getting admitted to higher ed through affirmative action, the assumption being they wouldn't have gotten in otherwise. Do you think that race-based affirmative action was never the best way to go?

JAMIE RASKIN: If you go back and look at the politics of the civil rights movement in the '60s and writings of civil rights leaders, there was very little discussion of affirmative action. There was a lot of discussion about dismantling structures of discrimination and exclusion and then redistributing opportunities in wealth and power to bring everybody in. So it was much more concerned with a vision of real democratization rather than adding a few people here and a few people there. So, I like much better the image of the civil rights movement of creating movements to change the nature of society rather than assuming somehow the superiority or the virtue of certain institutions that were racist and exclusionary and elitist and reactionary for centuries, and just trying to get a few people into those institutions. I just think the civil rights movement would be better off today – or progressive movements generally – fighting for universal rights and entitlements for everybody.

For more information on Maryland state Sen. Jamie Raskin, visit jamieraskin.com.

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