New Orleans   There are now more than a dozen states that have banned the use of race as an affirmative action tool in determining admission to state funded colleges and universities.   The Supreme Court in reviewing a ban by voters in Michigan determined on a 6-2 vote that it was OK with them.  They went out of their way to say that they were not determining the constitutionality of affirmative action itself, but that they were saying that the majority of voters could decide these questions.  Justice Sotomayor in a spirited dissent argued that the Supreme Court and the Constitution have responsibilities to protect the rights of smaller, minority groups against the tyranny of the majority.  Protecting individuals from the collectivist majority is a fundamental plank of conservative ideology, so it must have been some twisting in the plush, leather chairs as they read her decision. 

            But, where does this leave the rest of us?  In Michigan, race-blind admissions has already decreased the enrollment by African-Americans by 25%.  In California, though overall enrollment by Hispanics has surpassed whites in all nine state universities, enrollment in the more elite parts of the state system has plummeted.  It seems absurd not to recognize that we have a current problem, not just a historical divide.

            Experts are speculating that income will be the placeholder for many higher education institutions in their attempt to balance enrollments to assure great equality in opportunity.  There has certainly been a lot of jaw flapping, largely from elite universities, about doing more to enroll lower income students, but the results have been negligible.  It takes extensive outreach to high schools outside of their usual recruiting route and partners with connections in lower income communities that elites just don’t have given the rapid expansion of the American income and class divide.

            There’s no reason for optimism though.  An expert on income-based affirmative action at Georgetown University was clear in saying, “But it won’t solve the problem, since our system of higher education now faithfully reproduces race and class differences across generations.  In the end you can’t avoid dealing with race.”  Kati Haycock of Education Trust was as pointed in noting the on-the-ground reality in our schools, “…wishing that the people who spend so much time trying to end racial preferences in higher ed would work to end the racial differences in the education we provide K-12, which is why we need the racial preferences.”

            What she is really saying, and the really insidious impact of the Court’s decision and the right’s effort to take race out of higher education, is that there is a permanent institutionalization of a parallel, separate and unequal educational system since the advent of integration of public schools.  With mass education in urban, public schools overwhelmingly minority and lower-income, and middle income whites in separate private, parochial and cosseted suburban systems, they need to knock down equalization barriers in order to protect the de facto educational apartheid from K-12 and beyond. 

            This isn’t just a setback for affirmative education in state funded higher education, this is a body block to the notion of opportunity in America and the very future of our civic life and democracy.