An affirmative right of the people

Oct 18 2013 - 11:36am

The Supreme Court has said repeatedly that public universities may consider race in their admissions policies. But may voters instruct them not to do so?

Narrowly tailored affirmative action programs are constitutional, and we support the careful use of race as a factor in university admissions. But voters may disagree, objecting to a policy that treats people of different races differently, albeit in pursuit of worthy goals like achieving a diversity of views and experiences on campus. 

If voters can approve laws and state constitutional amendments by referendum, can't they similarly decide this policy question?

No, they can't, according to a slew of civil rights and higher education groups that on Tuesday attempted to convince the Supreme Court that voters don't have that right. These groups are challenging a 2006 amendment to the Michigan constitution that barred consideration of race, sex or national origin in admission to the state's universities. 

The country, they remind us, has a sad history of popular majorities picking on racial minorities via referendum. The high court repeatedly and rightly beat back those attempts. In the course of upholding the implementation of fair-housing laws and school busing to end desegregation, the justices condemned rules that made it harder for racial minorities, and only racial minorities, to advance their cause within the political system.

By enshrining a ban on affirmative action in the state constitution, the groups argue, Michigan voters created a tough path for advocates of a race-based policy to succeed: Their only recourse is excising the amendment from the state's charter. Advocates of any other admissions policy -- favoring, say, poor students, children of alumni or those with special talents -- can appeal directly to the universities' admissions committees, popularly elected regents or the Michigan legislature.

The Supreme Court is unlikely to agree, and for understandable reasons. This is not a case of a racist majority blocking a policy necessary to ensure equal treatment of minority citizens. 

Rather, this case involves a sensitive but legitimate policy disagreement that is playing out in many channels across the country. Few would dispute the authority of university regents or the people's representatives in the legislature to bar the consideration of race in admissions. 

It's hard, then, to argue that the people themselves don't have the same authority.

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