What I agree with Richard Kahlenberg about on Schuette v. Coalition to Defend Affirmative Action. And what I don’t.

As Dan Crawford posted below, SCOTUSblog linked in its daily Round-up feature this morning to my AB post yesterday about Schuette v. Coalition to Defend Affirmative Action, which is being argued at the Supreme Court this afternoon. Dan posted the Round-up paragraph in which the reference appears.  It says:

Commentary on Schuette comes from Richard Kahlenberg, who in an op-ed for The Wall Street Journal argues that “[a] ruling in Schuette that promotes race-neutral strategies to boost minority admissions would reinforce the message the court tried to deliver last term in Fisher v. University of Texas but has largely fallen on deaf ears.” And at Angry Bear, Beverly Mann explains why she “expect[s] that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.”

I posted the following comment to Dan’s post:

Yikes. In reading that sentence that Amy Howe [of SCOTUSblog] quoted, I guess I better say that the rest of my post makes clear (I hope) that that sentence is facetious.

Facetious, it definitely is.  The chief justice will use, or try to use, this case to kill affirmative action in public higher education.

But after reading Dan’s quote of the SCOTUSblog paragraph, I decided to read the Kahlenberg op-ed in the Wall Street Journal.  Kahlenberg, the op-ed says, is a senior fellow at the Century Foundation, is author of “The Remedy: Class, Race and Affirmative Action,” published in 1996.

His op-ed is titled “A Fresh Chance to Rein In Racial Preferences.” And most of the article uses the University of Michigan/Ann Arbor as an example of why racial preferences per se as a state university admissions criterion are bad policy.  He argues instead for socioeconomic criteria, and identifies several major state universities that have used various tools to achieve some semblance of socioeconomic, and not-coincidendally racial, diversity.  U-M/Ann Arbor is not among them and has not even tried to be.

I couldn’t agree more.  On all points.  Anyone who spends so much as a couple of hours on or near campus on a weekday during the fall or winter semester would be struck by how almost-thoroughly white and upper-middle and upper-class the undergraduate, non-Asian student body is.  Denizens of Ann Arbor itself are not much into current-model upscale foreign-import cars–old Volvo station wagons and Detroit-made small and midsize cars are far more common–but walk through a student parking lot and you’ll probably see several of the he high end import variety.

And I can attest that this was so during the 2006-2007 school year, the last admissions year before the constitutional amendment at issue in Schuette became effective. Indeed, I recall a longtime U-M professor, then nearing retirement, lament how much the nature of the student body had changed since his early years teaching there in 1970s.  He said that back then, there was a feeling of real connection between the university and the Big Three automakers whose headquarters were only 40 miles or so away and whose manufacturing and design plants dotted the metro area, and the central part of the state, because so many of the students had parents or other family members who worked there.  Now, he said, the student body is almost all upscale. Macbooks outnumbered Windows-based laptops by, I’d guess, three to one.  And most of them were recent models.

Kahlenberg mentions the University of Florida/Gainesville as one of the public universities that has made a successful effort at socioeconomic and thus racial diversity in its undergraduate body. That is clear just from walking through the campus during the school year, as I did not long ago on a visit to North Central Florida. He also mentions UCLA, UC-Berkeley, the University of Georgia/Athens and the University of Texas/Austin. But he also could have mentioned Michigan State University, The University of Illinois.Champaign/Urbana, I believe, and the University of Wisconsin, I also believe.

What I suspect happened at U-M, although it’s just my speculation, is that in the wake of the Supreme Court’s two 2003 racial affirmative action programs, one case about U-M freshman admissions policies, the other about U-M law school admissions policies–both opinions which focused heavily on the legitimate state interest in racial diversity among its student body the university–the university began to focus almost entirely on racial diversity, but, as it happens, without a lot of success. Had the school ditched its alumni-legacy preferences, which Kahlberg points out, UCLA and UC-Berkeley did but U-M did not–and instead focused more on socioeconomic diversity, it probably would have been more successful at achieving racial diversity as part of the broader socioeconomic diversity.

But, for the reasons I explained (or tried to) in my post yesterday on Schuette, that case is not, in essence, an affirmative action case.  Kahlberg sort of acknowledges that.  He says:

At issue is whether voters can amend a state constitution to ban racial preferences by referendum, as Michigan voters did by 58%-42% in 2006. The Sixth Circuit Court of Appeals struck the measure down by an 8-7 vote in 2012, arguing that the amendment introduces an extra political hurdle for minorities. Whereas alumni can lobby the University of Michigan to strengthen legacy preferences for their children, the Sixth Circuit said, minority parents would need to amend the constitution to get racial preferences reinstated. “Such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change,” the court said.

This case is about whether a voter referendum can amend a state constitution in a manner that removes a particular type of group, or removes groups with a particular type of cause, from access to the normal democratic methods of lobbying elected or appointed officials–the legislature, a local governing body, the University’s Board of Regents.  That is what this case is about, and Kahlberg, unlike (surprisingly) Emily Bazelon in Slate yesterday, does not miss that point.  But he both says that he thinks the court will nonetheless use the case to kill affirmative action in public universities and urges the court to do that.  His justification:

Although minority voters cannot easily lobby to reinstate racial preferences in Michigan, they remain free to lobby for race-neutral programs that assist many minority students. These would include programs that help low-income students of all races—programs for more generous financial aid; for more community college transfers to the main campus of the University of Michigan in Ann Arbor; for an end to legacy preferences that disproportionately benefit white students; and for admitting students in the top of every high school class in the state.

Hey! They remain free to lobby for race-neutral programs that assist many minority students! Well, aren’t they lucky!  For now, anyway.

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