Distinguishing Between Law and Politics on Affirmative Action


In my latest weekly column for Defining Ideas at the Hoover Institution, I look at last week’s Supreme Court ruling in the Michigan affirmative action case, Schuette v. BAMN. My view: that the legal considerations and the policy considerations raise very different issues. As I write:

As a constitutional matter, I think that Justice Kennedy made the right call [to uphold the voter-approved ban on affirmative action]. It is too much to say that the Equal Protection Clause instructs states on how to organize their internal governance structures. The questions of electoral motive really have to be put to one side, lest every electoral decision be subject to scrutiny for some hidden electoral bias. The decisions made at one time have to be reversible at some later time, by whatever means the state chooses to do so, including the referendum.

As a political matter, I would have voted against Michigan’s Proposition 2, because I think that the state should have more discretion in how it runs its own operations than it does in regulating how private parties run theirs. Justice Scalia notwithstanding, there is widespread support for affirmative action programs of different sorts within American colleges and universities, both public and private. Sometimes it runs to excess, often because of legislative influence. Critically, these programs could, and should, take very different forms for different institutions, which is one reason to prefer campus-by-campus decisions, where affirmative action questions can be decided in small increments, without lurching from one extreme to the other. Local knowledge matters, which is why I am opposed to any legislation—including the 1964 Civil Rights Act—that seeks to limit (like Proposition 2) the power of private institutions to introduce affirmative action programs.

I am equally opposed to any mandate that seeks—as the accreditation processes of the American Bar Associationdoes—to dictatorially impose affirmative action requirements or quotas on private institutions that prefer to adopt colorblind norms. Competitive forces will keep all these institutions in line, and introduce a variety of approaches that no top-down command can hope to achieve. Public universities, I have long argued, should not be barred by the Equal Protection Clause from adopting an affirmative action program, so long as their voters want them to do so.

What do you think?

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