Zachary Wolfe is an assistant professor in the University Writing Program who specializes in law and social justice.
Universities play a critical role in making possible a more racially equal and just society. There is a wealth of evidence that all students have a better educational experience in a diverse classroom.
Some universities were dealt a blow in advancing that mission last week when the Supreme Court upheld a Michigan law banning the use of racial preferences in university admissions decisions.
We must contend with the embarrassing reality of persistent racial inequality. A majority of Americans agree that affirmative action policies are necessary to respond to it. A recent Pew Research Center study confirmed that 63 percent of Americans support affirmative action in university admissions.
Of course, support for affirmative action is not universal or evenly distributed. Since the Court has never held that universities are required to adopt affirmative action programs, we are confronted with a de facto segregated society and the responsibility to decide how to respond.
Under our system, bodies like city councils, school boards and university boards of trustees are free to adopt policies for their area of responsibility – even if the vote likely would have gone differently in a state legislature, for example. Advocates, therefore, pick their audiences and battles accordingly.
Consider the unfolding struggle to gain equal rights for the lesbian, gay, bisexual and transgender community. Cities are adopting policies that could not pass state’s legislatures, and some states enacted marriage equality before it had majority support on the national scale.
In the case of Schuette v. Coalition to Defend Affirmative Action, university trustees and officials responded to their constituents – professors, students and alumni – and decided on a range of affirmative action programs, some that were challenged but upheld by the Supreme Court. Opponents of affirmative action then changed the rules for how such decisions can be made, removing the board’s authority to adopt affirmative action policies.
Several earlier cases had struck down similar changes to the political process. When desegregation activists succeeded in lobbying officials to adopt new policies, opponents could not, constitutionally, respond by changing which officials were empowered to approve such policies. This “political process doctrine” holds that a majority cannot make it harder for minority groups to achieve the policies they favor by closing off venues where those issues are decided.
But unlike past cases, the Court ruled last week that Michigan could “change the rules” to prohibit state universities from adopting affirmative action, even if supporters made compelling arguments and organized political support to convince the trustees and usual policymakers.
Importantly, this decision did not change the constitutionality of affirmative action. Neither public universities in states without a similar law nor private universities like GW are restricted under this decision. We can still adopt policies that advance responsible education and a more equal society.