On Tuesday, the Supreme Court refused to strike down Michigan’s ban on affirmative action at the state’s public universities. We disagree with the 58 percent of Michigan voters who, in 2006, inserted the ban into the state’s constitution. But the court, which ruled 6 to 2, nevertheless made the right call in respecting voters’ prerogative to make a different judgment.
The case, Schuette v. BAMN, did not address the constitutionality of public university admissions policies that consider applicants’ race. Rather, it concerned how and when those policies may be changed or eliminated. A group of civil rights activists argued that Michigan’s voters stacked the deck against minority interests by enshrining the affirmative action ban in the state constitution, singling out an issue of special significance to minorities and making the policy uniquely difficult to reverse.
The case reflects the tension between majority rule and the courts’ important, historical role in protecting minority rights. Over the course of decades, courts rightly struck down voter-driven attempts to reorder the political system in ways that would have made it difficult or impossible to ensure school integration or fight racist housing practices.
But this is not an obvious or even subtle case of misguided majorities imposing discriminatory policies on helpless minorities. The debate over affirmative action is one in which there is legitimate and understandable disagreement. We believe that carefully applied affirmative action policies promote valuable diversity on campuses. The court has said that these policies burden the notion of equal treatment but are allowed in narrow circumstances.
What this and other court decisions mean for affirmative action’s backers is that they may have to devise other ways to promote diversity on campus, at least in some places or under certain circumstances. An easy place to start would be eliminating merit scholarships in favor of offering that money to needier students, increasing outreach to qualified students in minority communities and pumping up need-based financial aid. Advocates also should keep explaining why diversity matters on campuses, all the more now that the court has made clear these questions are in voters’ hands.