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The color-blind Supreme Court

Does race still matter?

It’s a question that was at the heart of the Supreme Court’s decision Tuesday allowing Michigan voters to ban affirmative action at the state’s public universities.

It’s a debate that prompted some sniping between justices as they announced their decision and dissent in the case, Schuette v. Coalition to Defend Affirmative Action.

It’s also an issue that North Carolina will surely confront – and perhaps soon – now that the court cleared the way for other states to enact bans on race conscious admissions.

In Michigan, that happened in 2006, when voters inserted a ban into the state’s constitution in response to the Court upholding a race-based admissions program at the University of Michigan law school. On Tuesday, the justices said in a 6-2 vote that Michigan’s voters were within their rights to make that call. It was, said Justice Anthony Kennedy, “a basic exercise of their democratic power.”

It’s important to note that in its decision Tuesday, the Court did not ban college Affirmative Action programs. But in saying voters could do so, the court strayed from its decades-long precedent of protecting minorities from the damage that the majority has historicaly inflicted upon them.

Why the change of philosophy? The John Roberts court believes that we have progressed to a point in America where at least some of those protections are no longer needed. “Things have changed dramatically,” the chief justice wrote last year in Shelby County v. Holder, in which the court struck down a provision of the Voting Rights Act. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he said simplistically in 2007 when the court struck down race-based plans in Seattle schools.

Not so fast, said Justice Sonia Sotomayor. Her 58-page dissent Tuesday – part of which she read aloud – was a reminder of our country’s history of discriminating against racial minorities with laws and policies. That history has consequences that continue today, she wrote. Affirmative action plans are one way of repairing “the unfortunate effects of centuries of racial discrimination.”

But such programs are even more in jeopardy now that the court has cleared the way for states to ban them. It’s not hard to imagine North Carolina conservatives taking up the politically popular notion of banning affirmative action in college admissions. But they, and N.C. voters, should know that in most every state that has enacted bans on race-sensitive admissions policies, minority enrollment has meaningfully declined.

There are some who would say that’s just fine, because it reflects students who are admitted based on merit, not skin color. But that ignores the disadvantages that minorities, including Sotomayor, have had to overcome. As the justice said Tuesday: “We ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Yes, even now.

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