Supreme Court Justice Sonia Sotomayor's dissent in the Schuette v. Coalition to Defend Affirmative Action case is puzzling to me. She accuses her colleagues in the 6-2 majority of "trying to wish away racial inequality." They do nothing of the kind. It seems very hard to believe that there is anything in the Constitution or judicial precedent that would deny the citizens of Michigan the prerogative to affirm that a public university they support will be constrained to not treat applicants differently based on their race. This says nothing about whether the Michigan policy is a good one -- only that it is within the purview of the citizens to make this requirement. It does not say that every state must affirm such a policy. Is Sotomayor really saying that there is a Constitutional requirement that public universities must treat applicants differently based on race?
In the context of figuring out what is an equitable policy, we often hear questions about non-racial preferences in admissions, like athletes and legacies. Given the racial composition of profit-sport athletes relative to the student body, I don't expect the coalition that is pushing for Sotomayor's worldview to challenge those preferences. But it would not surprise me to see, and I think the day is coming when we will see, a legal challenge to legacy preferences at public institutions based on the claim that they discriminate against racial minorities. Legacy preferences perpetuate a legacy of discriminatory admissions standards (or simply unequal college preparation) that may have existed years ago. I doubt it would be too hard to show that the potential pool of legacy applications to any flagship state university is tilted away from racial minorities relative to the potential pool of applicants statewide. It would also not surprise me if Michigan was once again the battleground for this challenge.