In Schuette v. BAMN the Supreme Court recently upheld a Michigan constitutional amendment barring racial discrimination in admissions to state universities. Justice Sonia Sotomayor dissented in an opinion joined by Justice Ruth Ginsburg. This dissent is surprising because it seems to contradict views she expressed about racial preferences in her memoir, My Beloved Land. Sonia, what happened?
In her memoir Justice Sotomayor tells us that she did very well at Blessed Sacrament, her Catholic, mostly working class high school in the Bronx, and then was accepted at and entered Princeton. She quickly discovered she was not well prepared for Princeton and got some low grades because of the shortcomings of her prior schooling and “cultural background.” However, she “worked relentlessly” at “self-cultivation,” including improving her vocabulary and reading the “great books” (even during summers), graduated summa cum laude, and went on to Yale Law School, where she also thrived by extraordinary efforts after initial difficulties.
Justice Sotomayor acknowledged that she benefited from “affirmative action,” which she endorses—but only within very narrow confines. She recognizes that her own academic success was atypical and that many students admitted under racial preferences do not thrive.
She writes that before she entered college (in 1972), Princeton and other elite colleges had admitted few minorities. Through affirmative action “students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run” (emphasis added). She praises “outreach” and a “look-wider, search more affirmative action” that would create a “pipeline” for minorities to elite schools, a pipeline that supposedly already existed for the well-off.
No one objects to “outreach” and “look-wider, search-more affirmative action.” It is when schools employ gross racial discrimination in the academic criteria for admissions that many people protest.
Justice Sotomayor’s reference to “students from disadvantaged backgrounds” and “a race many were unaware was even being run” indicates sage recognition that disadvantage and unawareness of elite education do not equate strictly with race. In America all groups have some advantaged and some disadvantaged members. Some white students (as well as some minority students) attend high schools with counselors who know about elite colleges and urge good students to aim for them, but many do not. Her justification suggests affirmative action based on social disadvantage, not racial preferences.
Her apologia also suggests a limited life span for affirmative action. She says that special efforts should continue “until we [minority students] would raise kids of our own.” Justice Sotomayor is now 59. She is childless, but her classmates in that first generation of preferential admittees have children who have reached college age. By her reasoning, colleges should at least have begun to phase out racial preferences, if not ended them completely.
These attitudes about affirmative action are entirely absent from Justice Sotomayor’s dissent in Schuette. Nothing in the Michigan amendment forbids “outreach” or “look-wider, search more” policies. Nothing in that amendment prevents state colleges from considering factors of disadvantage (like poverty) in admissions. It bars only racial discrimination in admissions. Nonetheless, she deemed the amendment unconstitutional.
Instead her opinion states bluntly: “Race matters.” Of course, race still does matter in many ways; multiculturalists work hard to make sure of that. But so do many other factors matter—like family structure and the attitudes of one’s family and peers to education.
The question, then, is not whether race matters but what we do about it and the other factors that make it easier or harder for a person to succeed. Contrary to the suggestions in memoir, Justice Sotomayor no longer seems to think that helping everyone who needs help is a proper course; only racial preferences—even to the child of two black doctors who has attended expensive private schools—are effective or morally acceptable. And she does not seem bothered that 50 years of racial preferences have not narrowed the education gap.
Unlike Justice Clarence Thomas, the only other racial minority member of the Supreme Court, Justice Sotomayor is a liberal Democrat, so her views on equal protection carry special weight. In her memoir she seemed to support efforts to help the disadvantaged without regard to race—at least not indefinitely. Her reversal of that position in Schuette and her insistence on racial discrimination is a big disappointment.
 I reviewed this memoir in "Horatio Alger with Affirmative Action," 26 Academic Questions 229 (Summer 2013).