Race in the 2012 Race: Affirmative Action in Court

Outside the U.S. Supreme Court

If you think this contraception debate is hot, just wait until affirmative action reenters the public debate in a big way in the weeks before the November election.

“It could get ugly, I'm afraid,” said Mark McKinnon, a Republican strategist who worked for George W. Bush and John McCain. “Those sorts of debates can get very class related, very race related and very divisive.”

The Supreme Court announced on Tuesday that it will consider the constitutionality of taking race into consideration in college admissions. Arguments are scheduled for the fall, which will bring the issue squarely into voters’ conscience as they review their presidential choices.

The Obama administration has already weighed in on the case. It filed an amicus brief, in support of the University of Texas policy that takes race into account in admissions for students who do not graduate in the top ten percent of their high school class. 

Rehashing the affirmative action debate could tap into the economic worries of white working class voters, who broke heavily toward Republicans in the Democrats “shellacking” in the 2010 midterm elections. At the same time, the prospect of the Court striking down any racial consideration in college admissions could anger and energize key minority constitencies, who up to this point have been projected to turn out in fewer numbers in 2012.

It's an issue that plays very differently for different parts of the coalition that elected Obama in 2008. A Pew poll in 2009 reported "deep differences among Democratic groups" when it came to opinions of affirmative action. For voters who identify as Democrats or independents who lean Democratic, 60 percent of African Americans and 57 percent of Hispanics said they supported using preferential treatment to improve the standing of minorities in America. Asked the same question, just 31 percent of whites agreed, and 61 percent said they opposed preferential treatment. 

That could complicate the electoral math for the Obama campaign if 2012 looks at all like 2010. “Given solid, but not exceptional, performance among minority voters, Obama’s re-election depends on either holding his 2008 white college-graduate support, in which case he can survive a landslide defeat of 2010 proportions among white working-class voters,” wrote Ruy Teixeira and John Halpin wrote last November in a Center for American Progress report, “The Path to 270: Demographics versus Economics in the 2012 Presidential election.”  

And all of this will play out during the rough-and-tumble final weeks of a hard-fought campaign, a time when tapping racial anxieties of voters is a tried-and-true negative campaign tactic. Look no further than this now-notorious ad from North Carolina Senator Jesse Helms in his 1990 reelection campaign, which aired one week before the election as Helms trailed his Democratic challenger. “Is the color of your skin more important than your qualifications? You’ll vote on this issue next Tuesday,” the ad said. “For racial quotas: Harvey Gantt. Against racial quotas, Jesse Helms.” The Democratic challenger Gantt, a former mayor of Charlotte, also happened to be black – and the ad ends with split shot of his face next to Helms’. Helms won reelection by five points.

This was a Helms campaign ad. Imagine what SuperPacs like “Americans for Diversity Together” or “Content of Character at College” can run hard-hitting ads without directly sullying the candidate they might help.

But while affirmative action may be among the most divisive social issues in America, it plays in very different ways for key voting blocs. It's been largely dormant as a presidential campaign issue since the last time the Supreme Court took up the question in 2003. Since then, much has changed in Washington and in presidential politics, including the cast of characters. Take, for instance, this exchange, during then-Judge John Robert's confirmation hearings in September 2005.

“Do you think having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength as a society?" Senator Ted Kennedy asked Roberts. 

“I do," Roberts answered. "I agree with that statement, Senator. Yes.”

But Kennedy goes on to question the judge on what he sees as a pattern of hostility to taking race into account. “All of us oppose quotas," Kennedy sad at one point. "We’re talking about affirmative action.” Roberts responded that he had come down on both sides of the issue in the years previous.

Since then, Kennedy has passed away. Justice Samuel Alito replaced Justice Sandra Day O’Connor, who penned the 2003 Michigan Law School decision, the last time the court considered affirmative action.

And the first black president was elected to the White House by the most diverse electorate in American history.

In that election, African Americans, Latinos and Asian Americans each made up a larger share of voters in 2008 than ever before, a Pew Research Center analysis concluded in 2009. Obama also won the independent vote, but Taeku Lee, a political scientist at the University of California at Berkeley, has written about the racial diversity among independent voters. "While a majority of all independents reported voting for Obama, that central tendency shifts when independents are differentiated by race," Lee wrote in a paper published in the journal Daedalus in 2011. "Only 47 percent of white independents voted for Obama, compared to roughly 70 percent of non-white independents." 

while a majority of all independents
reported voting for Obama, that central
tendency shifts when independents are
differentiated by race: according to the
nep data, only 47 percent of white independents
voted for Obama, compared
to roughly 70 percent of non-white

During the Obama administration, two new justices have joined the court. Justice Elena Kagan will sit out arguments in the University of Texas case. And Justice Sonia Sotomayor’s position on race in hiring was among the most intense lines of inquiry when she was confirmed, after she ruled against a white firefighter in New Haven after the department threw out written test for promotions after it resulted in no minority promotions.

But it’s not clear how much public opinion has shifted on affirmative action since then.

In the weeks before Kennedy’s exchange with Roberts, Gallup found that 50 percent of Americans supported “affirmative action for racial minorities” and 42 percent opposed.

Broken out by race, it was more interesting. African Americans supported it by a much wider margin – 72 percent to 21 percent opposed. White Americans opposed affirmative action 49-44 – and that varied widely whether respondents identified as liberal, moderate or conservative.  These trends, Gallup noted at the time, had stayed consistent over time.

That poll didn’t break out Hispanic voters, but noted they “tend to be more supportive than whites, though not as supportive as blacks.” 

Four years later, Quinnipiac polled voters nationally during Justice Sonia Sotomayor’s ruling in the New Haven firefighter’s case. Generally, voters opinions on affirmative action depended on who was being targeted. In “hiring, promotions and college admissions,” voters support affirmative action for disabled people 55-39, but opposed it for African Americans 61-33 and for Hispanics 64-29.

Blacks supported affirmative action for blacks 59 to 30, and for Hispanics 69 to 26 percent. Hispanic voters were more mixed – they supported affirmative action for Hispanics 48 to 47 percent, and for blacks 51 to 46 percent.

Add to that the very different experience of Asian Americans when it comes to racial preferences — Asian Americans groups were splintered when the Court last considered affirmative action in 2003 — and this is an issue that will further underscore that election watchers’ need to abandon their tendency to refer to “minority voters” as a uniform block.

However the court eventually rules, it’s already certain that the legal arguments will till up questions of opportunity and fairness — and who is deserving of government intervention, and who is not.