Justice Sotomayor had the courage and the intellect to stand and deliver an equal protection jurisprudence for our times, and to allow us to see that the Emperor has no clothes when it comes to race in America.
On April 22, 2014, the Supreme Court, led by Justice Sotomayor in dissent, delivered a 100-page opinion, in Shuette v. Bamn, that provides our nation with a bold treatise on civil rights and political liberty, revealing both the landscape and the landmines to combating today’s denials of equal protection of our laws.
By upholding Michigan’s voter-approved ban on race as permissable attribute for public universities admissions preferences, the Court has allowed the voters of a State “to do what our Constitution forbids,” says Sotomayor in her 58-page dissent.
Sotomayor restates the law of equal protection and the role of the Supreme Court to remediate state circumvention of federal constitutional protections, weaving the Court’s precedent from the Civil War era through the 20th Century landmarks into this century’s grappling with how to reposition this jurisprudence to serve our future. Sotomayor called-upon the Court to stand and deliver liberty and justice for all by applying equal protection within the context of contemporary discrimination dynamics, especially in higher education, the specific issue addressed in Michigan.
At the heart of the issue is the use of special preferences in college admissions — legacy, race, geographic origin, athletic ability, donor relationships, uncommon talents, or peculiar interests— , a US constitutionally-valid common practice.
Under Michigan law, the members of the institution’s board determine these policies. However, Shuette arose because Michigan voters amended their state constitution to prohibit these boards from exercising their authority to select students based on race, but did not impose any restriction on their discretion to select students with any other attributes for special preference. Thus, this amendment singled-out only those students who have race as their special attribute and denies them the equal protection of Michigan’s higher education law.
Therefore, it appears effortless to conclude, as did Justice Sotomayor and Justice Ginsberg, that the Michigan amendment violates the equal protection clause of the 14th amendment of the US Constitution.
The Michigan amendment on its face targets race specifically as opposed to any other attribute, and therefore, the only purpose of the amendment is to ensure that the race-attributed students are unable to have an equal opportunity to have their attribute accorded special preference.
The future of equal opportunity depends on the current interpretation of our past. But nobody should try to push us back in time.
Sotomayor’s dissent redevelops equal protection jurisprudence so it is useful for the current and likely future challenges.
Avendaño is Executive Editor of El Tiempo Latino
alberto@eltiempolatino.com
