Tuesday April 22, 2014

by David M. Gonzalez

Earlier this morning the United States Supreme Court announced the decision in the Michigan Affirmative Action case, Schuette v. BAMN.  David Gonzalez was interviewed by the Daily Texan this afternoon to help explain the decision and provide context for how this ruling may affect the current litigation in Fisher v. University of Texas currently before the Fifth Circuit (on remand).  The following are excerpts from his interview.

“Today the Supreme Court has embraced the political process’s promise that legislation passed to protect equal protection” –  (I am pausing for a moment to marvel at the unintentional and uncanny alliteration) – “performs what it alleges to do. The Court upheld Michigan’s ban on affirmative action, and given similar constitutional amendments in California, Washington, and Florida, delegates to each state the power to decide whether to implement or prohibit affirmative action.

I have three observations based upon today’s ruling.

First, the assumption in the case “that there was no infliction of a specific injury” is ironically juxtaposed against a groundbreaking book that has rocketed to the top of the nearly ever best seller list. Economist Thomas Piketty’s book, Capital in the Twenty-First Century, is a detailed look at 200 years’ worth of data on the distribution of income and wealth.  Piketty’s thesis is that the United States and the developed world are on a path toward a degree of inequality that will reach levels likely to cause severe social disruption.  While the United States was founded upon principles that reject royalty and inherited wealth in favor of economic self-determination, the data from the past two centuries shows that today, birth matters more than effort and talent.

Education is the fundamental tool to reverse generational poverty and inequality. If colleges in Michigan were overflowing with black and Hispanic students one could understand why programs encouraging minority applicants to attend college would be unnecessary. Unfortunately, the percentage of minority enrollment is woefully under the percentage of minority adults in the college-age demographics. Further, the prison population for these minority groups is over-represented. While Michigan’s law prohibiting affirmative action does not inflict a “specific” injury the way a poll tax or literacy test might, the law certainly does little to help remedy a problem 200 years in the making.

Second,  the majority opinion attempts to claim the moral high-ground by explaining that affirmative action’s “attempt to use race based categories carries the danger of perpetuating the very racial divisions the policy seeks to transcend.”

Transcend? We’re nowhere near transcendence – we’re in the trenches. I don’t know about you, but as an aging taxpayer, all I want is to make sure there are more kids with high paying jobs coming into the workforce so that we can keep the government afloat in the midst of monstrous deficits.  College graduates earn more money than high school dropouts, and I don’t care what color you are – I want our colleges stacked to the brim. I want more colleges than prisons. I want to beat back the flood of overqualified workers from India and Pakistan and China who our high tech industries keep hiring because there aren’t enough qualified Americans to do the work.

Will a race-based admission preference solve this? Probably not. But could it attract kids to college who might not otherwise thing they could hack it and end up being the next Einstein? God I hope so. We need more Zuckerbergs and Brins and Pages. (And I’ll even take college dropouts like Bill Gates or Michael Dell, for that matter).

But the very existence of this law begs the question: if there are so few Blacks and Hispanics enrolled in college, why would voters in Michigan need to enact these laws? Are the universities being flooded with black and Hispanic students? Are they applying – and being admitted – in record numbers?

Or are we debating about single percentage points?

This very issue calls into question the assumption of “transcendence” the majority opinion wishes to convey. It’s as if the majority is saying, “we’re trying to help all the black kids who graduated from college from being labeled as affirmative action babies” when, in reality, it’s exactly the kind of problem we should want to have. I am happy to deal with the consequences of too many kids in college. Then I’ll address the issue of racial “transcendence.”

Finally, it will be interesting to see how Texas will handle this. Undoubtedly, a bill prohibiting affirmative action will be the first thing filed during the 2015 Texas Legislative Session. However, given the political tightrope surrounding the immigration debate, and both political parties’ desire to court the massive Hispanic vote, it appears the Supreme Court has just given both parties a new wedge issue for the mid-term elections.”

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