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Olivas: Court’s misguided decision

College graduates.

College graduates. Credit: iStock

The U.S. Supreme Court has upheld a 2006 Michigan ballot measure that banned public colleges from using race in their admissions decisions. While the court’s majority indicated that it was not overturning its 2003 Grutter decision to allow the use of race, “voters in the states may choose to prohibit the consideration of such racial preferences.”

This deracinated view that continues to chip away at the use of affirmative action is largely premised upon a flawed view that race no longer matters in a “post-racial” world, with the election of President Barack Obama as proof.

Justice Sonia Sotomayor wrote a dissent in Tuesday’s ruling that makes the better of the arguments: “There are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else.  The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.”

There are interlocking issues that have been hidden in the rush to declare affirmative action dead, with equally naïve assumptions that its death will allow merit to prevail and that financial need will be a fairer substitute. Higher education policy is never made well in statewide ballot measures. Public colleges have trustees who are either appointed or elected and who are charged with making nuanced, institution-specific, public-interest-oriented decisions. State voters elect trustees (as in Michigan), or elect governors who appoint them (as in most states), the proper roles for the public in the process.

It is trustees (and those they hire) who truly understand higher education issues, and they should not be hamstrung by ballot measures that are blunt axes on divisive issues, whether drafted in progressive or conservative terms; ballot measures can live and die by the sword of state elections.

While I have disagreed with the votes in Michigan and California to bar public colleges from considering race, my greater concern is not simply the outcome of state referendums sureer. I would not even want California voters today to reconsider its ban. I would applaud that outcome, but the fact that state voters might go one way on affirmative action one year, and then switch sides in another election cycle, shows how silly it is to have voters determine these issues.

This is particularly true at a time when the same Supreme Court has stripped Section 5 from the Voting Rights Act — which required that nine states, mostly in the South, get federal approval before changing their election laws — allowing old racial practices to reassert themselves in the political process. These developments are linked, and both disturb the balance that existed both in affirmative action, constitutional for more than 30 years, and in election law jurisprudence for almost 50 years.

The better course is to hold trustees accountable through traditional means of transparency, public engagement, freedom of information and sunshine laws, and in extreme cases, impeachment, as is under consideration in the University of Texas System for a trustee considered by some to have violated his fiduciary responsibilities.

As the number of Anglos in the educational system shrinks, there will be a new call to preserve minority rights. In Texas, white students now represent less than a third of all K-12 enrollments. Soon enough, they will want to defend the Alamo again, convinced it is theirs.

Michael A. Olivas holds the William B. Bates Distinguished Chair in Law at the University of Houston Law Center. He is the author of 15 books, including “Suing Alma Mater: Higher Education and the Courts.”