Michigan Affirmative Action Ban Upheld, Sotomayor Smacks It Down In 58 pages

On Tuesday, the Supreme Court upheld a Michigan state ban on the use of race as a factor in admissions to state universities, allowing voters to decide the matter on a state-by-state level. It follows an earlier ruling on affirmative action last June, where courts were ordered to give greater scrutiny for the reasons that such programs exist. Both decisions maintain the principle that there are some circumstances in which affirmative action is permissible.

The Supreme Court. Via NPR.

The Supreme Court. Via NPR.

As a mixed race Asian American, I have complicated feelings about affirmative action. Nearly a decade ago when I applied to college, I adamantly checked “other” on every race box. My mom and I picked out vaguely “ethnic” looking floral patterns for the return address labels, but generic, patriotically-themed stamps. I went back and forth on for weeks on whether it would be okay to turn in an essay about training for my black belt in karate, or whether the topic would give away who I actually am. It may sound ridiculous now, but at the time these all seemed like reasonable considerations in a larger strategy to protect me from the nebulous reach of admissions practices my family and I felt certain would only hurt me — namely, affirmative action.

As it turns out, I wasn’t the only mixed race Asian doing this — and in fact, there were many good reasons to try and escape the “model minority” stereotyping or flat out rejection because they’d already accepted “too many” of us. Affirmative action has a complicated, imperfect history. The concept of “minority” has changed over time, and even today, the categories themselves are debatable. For example, as an American-raised Filipina, I feel pretty comfortable being described as “Asian.” Other Filipinos do not. And I see their point — Korean culture is very different from Indian culture is very different from Filipino culture. Does “Asian” erase that? Are “East Asian,” “Southeast Asian,” and “Pacific Islander” improvements in all contexts? Does it even matter if the people magnanimously running affirmative action programs are all white? Were my concerns in 2004 legitimate, or was I just as wrong as all the white people crying “reverse racism?”

As I said: it was complicated and imperfect then, and it remains complicated and imperfect now.

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan await Kagan's Investiture Ceremony at the. By Steve Petteway, Supreme Court, via AP

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. Photo by Steve Petteway via AP/USA Today.

Regardless, affirmative action is one of the most prominent (if controversial) means of addressing racial imbalance in the United States today, where higher education is popularly understood as the primary vehicle for social mobility. Among affirmative action’s longtime supporters is Supreme Court Justice Sonia Sotomayor, who has been publicly outspoken on how affirmative action has helped her personally to move from a housing project in the Bronx to one of the most respected positions in the country.

In the Schuette v. Coalition to Defend Affirmative Action ruling on Tuesday, Sotomayor was joined by Justice Ruth Bader Ginsburg in a powerful 58-page dissent that contextualized the case within a century-long history of racism — both blatant and subtle — where courts have often stepped in to protect equal access and opportunity for minorities. Michigan’s affirmative action ban, Sotomayor explained, is part of an effort to “make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration.”

In addition, Sotomayor rebuked Chief Justice John Roberts’s 2006 opinion (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”), saying, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” She added, “As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Justice Elena Kagan — who many would have expected to share similar sentiments — presumably recused herself because she had worked on the case as United States solicitor general.

Jose Alvarenga, center, BAMN (By Any Means Necessary) national organizer, and others protest the Supreme Court ruling on the campus of the University of Michigan Tuesday, April 22, 2014, in Ann Arbor, Mich. The justices ruled 6-2 that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. (AP Photo/Detroit News, David Coates ) DETROIT FREE PRESS OUT; HUFFINGTON POST OUT.

Jose Alvarenga, center, BAMN (By Any Means Necessary) national organizer, and others protest the Supreme Court ruling on the campus of the University of Michigan Tuesday, April 22, 2014, in Ann Arbor, Mich. Photo by David Coates via AP/Detroit News.

Although Sotomayor and Ginsburg were outnumbered 6-to-2, the Supreme Court decision to uphold Michigan’s ban is far from the end of affirmative action. As mentioned earlier, the court maintains support for the principle that there are some circumstances in which affirmative action is permissible. In the Schuette case specifically, the fact that voters were allowed to make the decision for their state was a major factor in deciding its constitutionality.

Existing practices in other states will be maintained — including California and Washington state, where similar affirmative action bans mean that state schools will continue race-blind admissions processes. Private schools are not affected, either in Michigan or elsewhere.

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Laura Mandanas

Laura Mandanas is a Filipina American living in Boston. By day, she works as an industrial engineer. By night, she is beautiful and terrible as the morn, treacherous as the seas, stronger than the foundations of the Earth. All shall love her and despair. Follow her: @LauraMWrites.

Laura has written 210 articles for us.


  1. “Korean culture is very different from Indian culture is very different from Filipino culture” yesyesyes ALL THIS.

    Even in Malaysia, there are three diverse main cultures – Malay, Chinese, Indian – that are adamantly Malaysian while maintaining their core identities. Come to the UK, and they are all Asian. WTF.

  2. I’ll probably catch a lot of flak for saying this as a white person, but I don’t know that affirmative action is really the best solution to racial discrimination in the USA at this point.

    • Please, white person, with your WEALTH of experience in racial discrimination, tell me how we should solve racial discrimination in the US. Obviously you are best suited to tell us how/show us the way.

  3. The fact that athletic ability and legacy are still allowed to heavily influence admissions decisions but race is not I find really stupid. I personally don’t trust universities to work hard to recruit minority students. I also could have sworn I found an article that showed a significant drop in enrollment in states that have already banned it, but I can’t find it anymore so maybe I was mistaken.

  4. There is no such thing as “affirmative action” as discussed in the top half this article. And most Americans (and others) misunderstand what is actually at issue. When people say “affirmative action,” they are nearly always talking about policies that have not been in place for a number of years. It is patently unconstitutional to admit or deny students under any number based system (what the Court calls “quotas”). That’s University of California v. Bakke. What is NOT unconstitutional, and what was at issue here, are extremely limited race-conscious admissions systems (limited in time and as a last resort after searching review for a race-neutral alternative) that promote the the educational value of diversity. That’s Grutter v. Bollinger.

    This all goes to Sotomayor’s footnote 2: “Although the term ‘affirmative action’ is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term ‘race-sensitive admissions policies.’ Some comprehend the term ‘affirmative action’ as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a ‘points’ system, whereby an institution accords a fixed numerical advantage to an applicant because of her race’; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bolinger, 539 U.S. 306 (2003). There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with Grutter, colleges and universities must use race flexibly; id., at 334, and must not maintain a quota, ibid. And even this limited sensitivity to race must be limited in time, id., at 341-343, and must be employed only after ‘serious, good faith consideration of workable race-neutral alternatives,’ id. at 339. Grutter-compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intentional and solely on the basis of race.”

      • A statistic in Sotomayor’s graphs!

        I just think it’s worth clearing up that framing of “affirmative action” or race-conscious admissions policies as taking opportunity away from those who rightfully deserve it is wrong. Not only is it wrong, it’s a dog-whistle; code for what really means “minorities don’t deserve it.” And that gets picked up and repeated enough that we all get used to it, forget the extreme racism it’s based in, and become convinced it’s a politically acceptable point of view. I mean, so many people think it, so it must be, right? No, it’s a cover for trying to reserve the space and maintain its oppressive force over certain groups of people, rather than letting the sunlight in and letting everyone play by the same rules and achieve on the same standards.

        Because there are two logical explanations for why lower scoring minorities (like Justice Sotomayor) score lower and achieve anyway. Either we are universally not as smart and thus survive only on handouts, or the system is gamed against us and we have to work harder for less reward. Decades of social science studies prove the latter (and plain old science disproves the former). Minorities don’t get an unfair benefit from race-sensitive admissions because of their race. They get what they rightfully deserve IN SPITE of a system that has discouraged and oppressed them because of their race.

        • I think it’s important to remember that minorities are not a singular bloc, and Asian American groups do face some unique issues here.

          While it may not be as overt as quota-filling, “model minority” stereotyping means that Asian American students are popularly understood to be very high academic performers, and when they fall short they may be judged more harshly than those who were not set up against that foil. And even when Asian American students do meet those expectations, the stereotype still comes back to bite them — they may be thought of as all being the same, the product of an army of overbearing “Tiger Mothers” who force their offspring to become prodigies via rote memorization of math facts and endless hours of violin practice. When the end goal is a diverse environment, how many variations on that theme are needed, especially when the stereotype goes that these people are quiet loners who probably won’t contribute much to campus life outside the classroom?

          College admissions processes take place behind closed doors so it’s hard to know exactly what the thought process is, but there’s evidence of double standards in the outcomes. For example, a study by Princeton researcher Thomas Espinshade a couple years ago found that Asian American students had to score 140 points higher on their SATs to gain admission to prestigious colleges compared with white students.

          In short: Asian Americans are not the oppressive force here. The bamboo ceiling may look different from discrimination against other minority groups, but it is still discrimination.

        • Yes, but that’s all sort of to my point…?

          You’re assuming I was hostile to your framing of Asian Americans as part of my broader umbrella of “minority” — I wasn’t, at all. Of course, minorities are not a singular bloc, that’s absurd, and everyone faces unique issues. A Mexican American from the west side of Chicago is not an African American from Detroit is not a Salvadoran from East LA is not a white woman from Appalachia. That’s exactly the argument for race-sensitive admissions policies, not quota-based systems.

          What I was taking issue with was your framing of the admissions process at issue in this case and it public universities, which, though a bit of a black box, is not consistent at all with the picture you painted in the first half of the post. That’s not to say your experience is not relevant, that’s not to say your experience is invalid, and it’s not to say Asian Americans don’t experience discrimination (trust me, I have not the slightest doubt). But your study affirms what I was getting at, and the force of Sotomayor’s point: Race sensitive admissions are not “unfair” handouts that penalize the “wrong” races. Quite the opposite, they acknowledge that the admissions processes (and every purportedly neutral benchmarker of achievement they rely on) that do not take race in to account as Prop 209 and Michigan’s law require are already ANYTHING but race-neutral. They are active perpetuations of biases.

  5. It’s mind-boggling that Justice Thomas wouldn’t recognize the importance of affirmative action as a POC too…

  6. I find the Asian vs other racial minorities issue fascinating. I’m Native/Latin/white and my person is white/Asian and while affirmative action has immensely helped my family, me, and my people, it’s had the opposite effect on my person’s family. Granted, when you look at the socioeconomic status of Native Americans vs the economic status of Asian Americans, there’s a startling difference. Only a tiny (and I do mean tiny) percentage of Ndns have a college degree, whereas the same cannot be said of Asian Americans. But my person experiences far more racism than I do, and so do her wealthy, extremely educated and successful Asian and Asian American family members. So ehat is the solution wrt college admissions and higher ed in general?? I have no damn idea.
    Side note: the difference in socioecon

    • Socioeconomic status is different among different region origins, say Vietnamese vs Indonesian. But still generally wealthier/more educated than ndns/Latinos.

  7. (This is not an American anecdote, though it does connect to affirmative-action issues regarding Asian ascendance.)

    A friend of mine is one-quarter Vietnamese, with the rest of her ascendance being european French. Which means that in person, unless you are staring amourously into her face, she usually passes as white.
    Yet she retains a Vietnamese last name, so on forms and such she probably registers (because of her french first name) as French-born Asian. Discrimination or stereotyping is much more of an issue for her in terms of administrative processes. (As a quite free-spirited artist, she’s sometimes joked about how schools that admitted her probably thought that they would be acquiring a quiet and uniformly dedicated student.)

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