walter russell mead peter berger lilia shevtsova adam garfinkle andrew a. michta
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Published on: April 26, 2014
Weekend Read
Race, Democracy, and the Constitution

Granting preferential admissions to universities on the basis of race is impermissible if not unconstitutional. That is the correct decision the Supreme Court made this week. That does not mean, of course, that we shouldn’t try to address both racial and class discrimination in higher education.

Looking for scandal, the press is focusing on the apparent conflict between Chief Justice John Roberts and Justice Sonia Sotomayor. The controversy began seven years ago before Sotomayor was on the Court, when Roberts wrote, in a decision invalidating a race-based busing program in Seattle, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This week, in a dissent Sotomayor chose to read aloud from the Supreme Court bench, she scolded Roberts:

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Sotomayor’s point is that race matters in ways that her colleagues, including Roberts, apparently do not understand. She is right; race does matter, and it matters in ways that are difficult to perceive and comprehend. Amongst the pages of historical, legal, and everyday examples she offers, there are these reflections on the small but persistent present reality of race in America:

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

Roberts responded in a separate concurring opinion, defending himself against the charge of racial insensitivity. It is not and he is not out of touch with reality, he argues, to disagree about the use of racial preferences in responding to the reality of race in 21st century America. He too is right.

The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts:  ‘I do not belong here.’” But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

The background of these supremely intemperate contretemps is a decision in Schuette v. Coalition to Defend Affirmative Action in which the Court, in an opinion written by Justice Kennedy, upheld a Michigan Constitutional provision (recently amended through a ballot initiative) prohibiting race-based affirmative action in public universities.

As both Justice Kennedy’s controlling opinion and Justice Breyer’s concurring opinion make clear, the decision does not at all address the constitutionality of race-based affirmative action programs themselves. While in recent years the Supreme Court has shown skepticism about race-based affirmative action, it has consistently allowed such programs as long as they are tailored to achieve a legitimate state purpose understood as diversity in educational institutions. Nothing in Schuette changes that.

At the same time, Schuette does give constitutional blessing to states that democratically choose not to use race-based affirmative action. Already a number of states (including Blue states like California and swing states like Florida) have passed voter initiatives banning such race-based preferences. Racial preferences are not popular. In Michigan, a state that has voted democratic in the last five presidential elections, the anti-affirmative action ballot proposal passed by a margin of 58 percent to 42 percent. For this reason, Schuette is rightly seen as another nail in the coffin of race-based affirmative action programs.

Support for race-based affirmative action is dwindling. Hence the impassioned and at times angry dissent by Justice Sotomayor. Even if the Court does not further limit the ability of states to practice race-based affirmative action, more and more states—which means the people of the United States—are choosing not to.

This, by the way, does not mean a return to segregated education (although it will likely mean, at least in the short term, fewer African Americans at public universities in Michigan). To choose not to allow race-based preferences opens the door to other experiments with promoting diversity in education. For example, universities in Michigan and California can seek to give preference to students from poor and socio-economically disadvantaged zip codes. Depending on the connection between race and poverty in a given state, such an approach to diversity may or may not lead to racial diversity on campus, but it will very likely lead to increased and meaningful diversity insofar as students from meaningfully different pasts and with uniquely divergent life experiences would be in school together. It is at least arguable that such an approach would lead to greater diversity than many race-based preference programs that end up recruiting a small group of upper class minorities.

As a legal matter, Schuette concerned two different understandings of freedom. On the one hand, as Justice Kennedy writes, “The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Understood as individual rights, freedom means the right to attend desegregated schools, the right to be free from unreasonable searches and seizures, and the right to meaningful dissent.

But freedom, Kennedy continues, “does not stop with individual rights.” There is another understanding of freedom, which may be called the freedom to participate in self-government:

Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.

Both individual freedom and political freedom are important. Both are at the core of American understandings of free, democratic, constitutional government. The point is that these freedoms must be balanced. In this case, the balance swung in favor of political freedom. Here is Justice Breyer’s argument from his concurring opinion:

The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs. In short, the “Constitution creates a democratic political system through which the people themselves must together find answers” to disagreements of this kind.

For Sotomayor and those who agree with her, the claim is that the reality of racism historically and presently threatens the integrity of the political process. The problem with Sotomayor’s argument is that it is not at all clear that racial inequality today is the primary factor threatening the integrity of our political system. On the contrary, while it is incontrovertible that race matters, other facts, like class or income, may matter more.

To think seriously about race in American is hard. Very hard. As Walter Russell Mead writes, in discussing these questions,

There’s a basic point that should not be forgotten in dealing with anything touching on race: The place of African Americans in the United States is a uniquely difficult and charged question. The history of slavery, segregation and entrenched racism in the United States cannot be denied and should not be minimized. The effects of this history are still very much with us today, and while the overwhelming majority of Americans repudiate racist ideologies and beliefs, the continuing presence of racist ideas, prejudices and emotions in this country is a reality that policy makers and people of good will cannot and should not ignore. It is naive to think otherwise, and any look at how our system works and any thoughts about whether it works fairly have to include a serious and honest reflection on the fading but real potency of race.

Mead raises a difficult question, which is whether race is really the best way to think about inequality in 21st century America. He argues for status based public policy programs to replace race-based programs:

Ultimately, this is why status-based forms of affirmative action seem better than race based ones. President Obama’s kids don’t need any special help in getting into college, but there are many kids of all races and ethnic groups who have demonstrated unusual talent and grit by achieving in difficult circumstances. Kids who go to terrible schools, who overcome economic disadvantages, who are the first in their family to complete high school, or who grow up in neighborhoods that are socially distressed can and should be treated with the respect their achievements warrant.

Should President Obama’s children benefit from race-based preference programs? Clearly the answer is no. But note, this does not mean that his children will not suffer from racism. Mead knows this and says so. Indeed, it is likely they will, over the course of their lives, find themselves in situations where they are looked at askance, avoided, singled out, discriminated against, and also privileged on account of their races. Race matters, undoubtedly, in complicated but overwhelmingly in damaging and at times degrading ways. Responding to the reality of race in our society is absolutely necessary.

It is not at all clear that race-based preferences in college admission are the best way to respond to the reality of race in the 21st century. Some states believe such race-based preferences are necessary. Other states, including Michigan, California, and Florida, have concluded they are not. Deciding that preferential admissions to universities on the basis of race is impermissible if not unconstitutional. That is the correct decision the Court made this week.

That does not mean, of course, that we shouldn’t try to address both racial and class discrimination in higher education. There are many ways to address the damaging impact of racial as well as economic inequality in our society—some maybe better than race-based preferences. For one, schools could institute truly need-blind admissions and decide to give preference to applicants who come from poor or disadvantaged backgrounds. While many of the poorest and most disadvantaged children in our society are white and from rural backgrounds, many others are racial minorities. Both would benefit from such an approach, which would be infinitely more just than a simple preference based on skin color.

Even better would be a serious commitment to affirmatively act to improve our shamefully underfunded and under-achieving high schools. Especially in poorer areas where rural and urban poverty crush the hopes and dreams of young people, our public schools are too-often disastrous. These schools, however, are free and the four years students spend in them are frequently wasted. If we could somehow figure out how to make high school a meaningful experience for millions of low-income children, that would be the single best way to help disadvantaged children around the country, both minority and white. That would be a truly meaningful form of affirmative action.

Over the last 50 years race has replaced class as the primary way that people on the left have perceived the injustices of the world. During that time poverty did not disappear as a problem, but it was hidden behind concerns of race and at times of gender. A whole generation of activists and politicians have grown up and worked in an era in which the problems of the nation were seen through a racial lens. There were good reasons for this shift and the results have been important and phenomenal. Yes, race still matters today, but nowhere to the extent it did 50 years ago.

Poverty, on the other end, matters ever more. With rising inequality and with the well-documented problems of the middle classes (let alone the overlooked lower classes), we are slowly seeing a shift away from race and towards class as the dominant lens for thinking about equality and inequality in the country. This is as it should be. It is time to begin thinking more about advocating for real class diversity in colleges and public institutions; that doesn’t mean race as a problem has gone away, but it does mean that in the early 21st century, poverty trumps race as the true scourge of our public life.

show comments
  • Pete

    But what if the premise of the Bell Curve is correct, then what do you suggest, ignore the reality and smoother it with political correctness?

  • lehnne

    Race, discrimination and lack of opportunity are real issues but are often used as distracting energy sinks to deflect attention to the state’s relentless drive towards total power.This is why authoritarian governance always control education. If the state can indoctrinate via higher education or warehousing in primary and secondary schools it is a win/win situation as both produce revenue streams, indebtedness (material and financial) and compliance. .” If the population lacks the ability to see their material situation in context to the past they are all the more disadvantaged For example,compare the standard of living of the middle class form 50 years a ago to the services and technology available to a modern unskilled uneducated. Engaging in such comparisons enables one to separate ideology from facts on the ground evidence. Another example is defining poverty sans the dollar value of social services rendered and the infrastructure the delivers it also reflects ideology not reality.

    • Corlyss

      I want the government to start coming clean about the amount of transfer payments that go to the alleged poor. Until there is transparency on that issue, there will be no serious discussions about poverty because nobody knows what it means in context of anyone’s current situation.

      • stanbrown

        Government spending on poverty programs equals over 21,000 per year for every person living in households under the poverty line. Obama says the number is going up to 25,000.

        • Corlyss

          Where did you get the numbers? I’ve never seen them in my readings.

  • Anthony

    As Professor Mead has stated many times, the left should spend more time thinking about why college is so darn expensive with a view towards rectifying the abysmal status quo. Higher tuition fees are more likely to deter poor people from attending a college than racial discrimination is. And by the way, the cheapest educational options tend to be available in red states.

  • Ghosts of Benghazi

    Good God get over the race discussion already. It is a construct of greedy, liberal politicians. I do not even think about race until it is constantly thrown in my face……

    • Corlyss

      Remember the Grand Inquisitor in one of those tiresome Russian novels? As his Church can do without Christ but not without Satan, the Church of Minority Grievances can exist quite nicely without any of the habits the majority pines hopelessly for their development in minorities, but it can’t exist without the Satan of perpetual racism.

      People should stop waiting for minorities to be satisfied with improvements in society that all others can see; it will never happen as long as there’s a single race-baiter whose livelihood depends on the existence of racism. As long as minority individuals are relieved of the responsibility for themselves, they will gladly take the entitlements and demand more.

  • Corlyss

    “That does not mean, of course, that we shouldn’t try to address both racial and class discrimination in higher education.”
    Regrettably, that can’t be done without doing exactly what was just declared unconstitutional. Why? Because minorities have chosen entitlements over equality in their political activism. The system might just as well give the minorities college degrees and pretend they mean something . . . . oh, wait, that’s what’s happening to everyone these days . . . . never mind.

    • mgoodfel

      Just do affirmative action based on income. You’ll get most of the blacks and Hispanics that you are getting now. You will also get a few low-income conservative whites, and lose some high-income Asians, but oh well.

      • qet

        Yeah, well, this is Berkowitz’ recommended “class-based” approach. And I for one fail to understand how a class-based approach will survive the reasoning of Schuette where race didn’t.

  • Anthony

    As a simple and present example to Justice Sotomayor’s point (race matters) review TAI commentary and some of its most vehement displays when theme lends itself to be colored by genetic pigmentation allusions. On to more serious matter, essay emphasizes wrong argument: “both individual freedom and political freedom are important.” Rarely will literate American disagree with aforementioned but that uses constitutional covering to evade crux of our ongoing American Dilemma. I think Justice Sotomayor use of Race Sensitivity instead of Affirmative Action if carefully weighed provides another dimension by which our historical avoidance may be honestly faced and perhaps race, democracy, and the constitution conjoined.

    As has been noted “poverty trumps race as the true scourge of our public life”, well that may depend on where you sit. By way of example, “class centric approaches to diversity are already making headway at US colleges, but they’re not the substitute for race that income – or wealth – focused proponents imagine. Even the most fervent supporters of class-based admisions are quick to acknowledge the dilemma: the sudden ascendance of socioeconomic affirmative action has been made possible by American courts with a waning appetite for racial remedies to racial discrimination – not because it’s the best solution…. So, yes, class and race are in many ways inextricably linked. but its folly to focus solely on socioeconomic factors if you’re looking for diversity in college admissions – they’ll never serve as a magic proxy for race.”

  • qet

    The issue here is not nearly as complicated as various media reviewers and commentators are making it out to be. Whatever one’s feeling on the “problem of race” in US society–its history, its economics, its politics–there is simply no warrant for the US Supreme Court to interpret the Constitution according to a standard of “the integrity of the political process” (or, in Sotomayor, J’s own words, “the right. . .to participate meaningfully and equally in the political process”).

    Such a standard goes well beyond the authority appropriated by the Court in Marbury, and even if it is not unreasonable for a scholar or legal commentator to describe, in a law review article or the like, the upshot of certain of the Court’s various Equal Protection decisions as amounting to a concern with “the integrity of the political process,” that does not legitimately pave the way to openly declare such a standard the measure of the conformity to the Constitution of legislation.
    And as for the policy recommendtions of Berkowitz, well, they are unoriginal in the extreme, and must in any case be evaluated against an analysis of how it is that all of these exact same policies which have been implemented to some degree or other for the last 40 years have so far failed to deliver what Berkowitz and others expect they will deliver if continued and intensified.

    • Anthony

      I agree and parallel standard (integrity of the political process) was dismissed in Roe.

  • circleglider

    Should President Obama’s children benefit from race-based preference programs? Clearly the answer is no. But note, this does not mean that his children will not suffer from racism. Mead knows this and says so. Indeed, it is likely they will, over the course of their lives, find themselves in situations where they are looked at askance, avoided, singled out, discriminated against, and also privileged on account of their races…

    This is perhaps the silliest statement ever made. Ever.President Obama’s daughters will never suffer in American society because of their race. Instead, they are and will continue to live lives of privilege and celebrity. Their race and their heritage have already secured for them positions in the upper 0.1% of American society.To suggest that the Obama daughters may someday be “looked at askance, avoided, singled out, discriminated against… on account of their races” indicates a perspective that is completely out-of-touch with contemporary America. And it invalidates everything else Berkowitz says.

  • Fat_Man

    “that most crippling of thoughts: “I do not belong here.'”

    She is correct, she is a political hack who doesn’t belong on the Supreme Court

  • Anthony

    Supreme Court has not during illustrious American history been void of political hacks operating as jurists (dating from 1789). Statement not intended as defense of any jurist but attempt to provide context to 3rd political branch established by Founding Fathers – Fukuyama: Decaying of American Political Institutions.

  • stanbrown

    Just because people in society should be aware of race and history does not mean that government programs are the best way to approach the issue.

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