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Michigan’s ban: Sotomayor’s ‘disadvantages’

U.S. Supreme Court Justice Sonia Sotomayor was so upset by the court’s Monday decision upholding Michigan’s ban on racial preferences in higher education that she wrote a 58-page dissent in which she compared the ban to Jim Crow laws. A more absurd comparison could hardly be imagined.

Michigan voters amended the state constitution in 2006 to forbid state colleges and universities to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Sotomayor claims the ban amounts to the “last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” But is it a race-neutral admissions process that “disadvantages” minorities, or is it the public school system from which they emerge unprepared for college?

Many affirmative action bans, like Michigan’s, prohibit racial preferences for the purpose of increasing diversity. Census data show that non-Hispanic whites are down to 57 percent of Floridians, Arizonans and New Yorkers, 44.5 percent of Texans, 39.8 percent of New Mexicans and 39 percent of Californians. At some point, preference bans will begin to disadvantage whites. What will Sotomayor think of them then?

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