Tuesday, April 22, 2014

The Supremes Keep Chipping Away

For some Americans, today's news about the Supreme Court ruling affirming the state of Michigan's right to ban the consideration of race as a factor in college admissions has unsettling consequences.

But for others, including no small number of black conservative Americans, the decision is a welcome one.

Regardless of your stance on the issue you can bet it's all high-fives and celebratory smiles over at the offices of the American Legislative Exchange Council (ALEC). The broader efforts by ALEC to conceive of, draft and disseminate "sample" legislation models for state legislators in Republican-controlled states as a means to specifically target minority access to higher education, the voting process and even health care raises a lot of questions.

Part of what troubles me about today's ruling is that the Supreme Court has essentially ruled that individual states have a right to vote on public ballot initiatives that undermine Federal law shaped by previous Supreme Court decisions; in the case of today's ruling Federal remedies intended to ensure some sense of fairness in determining guidelines on access to higher education.

And let's be honest here, are the state ballot initiatives like Michigan's Proposal 2 really intended because it's been proven that American students now have equal access to higher education regardless of religion, race, nationality or sexual orientation and that there are no more discriminatory practices in college admissions?

Or is the Michigan college admissions mandate a reflection of a much deeper shift in the tone of this country fueled by a palpable undercurrent of resentment towards the presence of a two-term African American president in the White House?

Is the ruling on the mandate timed to polarize voters ahead of the upcoming mid-term elections?

And what's going to be the impact on minority high school students in Michigan who want to go to college but come from under-served school districts or less affluent surroundings?

Statistics from the Integrated Postsecondary Education Data System (IPEDS) analysis of college enrollment rates for African-Americans and Hispanics after the passing of California Proposition 209 in 1996 (also known as the California Civil Rights Initiative or CCRI) offers some insight.

According to Wikipedia CCRI "amended the state constitution to prohibit state government institutions from considering race, sex and ethnicity, specifically in the areas of public employment, public contracting and public education."

IPEDS data demonstrates that after Prop 209 was passed in 1996, enrollment for African-American students in California's 4-year public college system (CSU) declined by 15% and there was a 10.3% decline for Hispanic students. The enrollment drops were even more pronounced for California's university (UC) system; there was a 21.3% decline for African-American students and a 12.7% decline for Hispanics after Prop 209 was passed.

Some experts argued Prop 209 removed many students who were unprepared for college and hence was better overall for minority graduation rates. But I'm not an expert on affirmative action and the merits of CCRI can't simply be reduced to stats on minority enrollment at public colleges and universities.

Proposal 2 was passed seven years ago in Michigan and as the New York Times reports today, there has been a 25% decrease in the overall minority population of college students in the state even while the number of minorities who've reached the age to attend college is up.

But what's this going to mean to the people of Michigan? What does this mean for minority students who may grow up in economically disadvantaged circumstances and attend a sub-par public school but still want the chance to attend college?

The Supreme Court really ducked that question today. Justice Kennedy was of course eloquent in his reasoning in writing the majority opinion for the Court in which he stated (in part) the decision was not about the merits of affirmative action in college admissions, but rather that the Court did not have a Constitutional right to over-ride the will of an individual state mandate voted upon by the citizens of Michigan.

By doing so the Court gave a green light to ALEC and other deep-pocketed conservative groups like Americans For Prosperity and True The Vote to use the vast amounts of untraceable money they collect from groups and people who can remain totally anonymous to initiate more ballot initiatives sponsored by Republican state legislators - then in turn saturate local media with misleading commercials to encourage citizens to support these frequently disguised initiatives; thanks in no small part to the Supreme Court's rulings in the Citizens United case and of course much more recently McCutcheon v. FEC (Federal Election Commission).

In short, six members of the Supreme Court punked out on this one. They avoided their responsibility to weigh in on the Constitutional merits of affirmative action in the 21st century.

Like Pontious Pilate the 6-2 majority (Justice Kagan recused herself from the case) washed their hands of an important decision that was in their purview to make - cases like this are the very reasons we have a Supreme Court judiciary.

Instead, the Roberts Court left a matter of critical importance (equal access to higher education) up to the masses of Michigan's populace, who in the complex area of affirmative action, are arguably less informed by reason and an in-debt understanding of the issue, than they are ignited by passion generated around the perception of the issue.

A perception more often shaped by inflammatory rhetoric and misunderstanding than by qualified academics, balanced statistical analysis or history. Only time will tell how the decision to uphold Proposal 2 and its affect on access to higher education will impact the lives of people in Michigan; but in the meantime what happens to those students outside the majority who live in a single parent household in Detroit or Flint and dream of going to college?

On that the Supreme Court majority is far more ambiguous than they are about their own personal political leanings and how it affects the way they interpret the Constitution.

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