A Preference for Discrimination
The Sixth Circuit opts for unequal treatment by race and sex.



There’s some room for debate about what the Fourteenth Amendment’s guarantee of “equal protection of the laws” means for racial preferences at government schools. Some claim the clause mandates colorblindness in all aspects of government; others point to historical evidence indicating it was not originally understood that way.

What the Fourteenth Amendment absolutely does not do, however, is protect racial discrimination at state-run schools — the absurd conclusion reached by a three-judge panel of the Sixth Circuit Court of Appeals in a recent decision. The ruling will likely be overturned upon further review, but it stands as a stunning example of just how untethered our judicial branch has come from the Constitution.

At issue was Michigan’s Proposal 2, an amendment to the state constitution that forbade state colleges to use race- and sex-based “affirmative action.” The referendum was a textbook example of citizens’ exercising their right to control their public institutions within the bounds of the Constitution. At best, it enforced the Fourteenth Amendment; at worst, it enforced the Civil Rights Act of 1964, which forbids racial discrimination in college admissions.

Two members of the panel, however, crafted an unconvincing argument based on two dubious Supreme Court precedents. Proposal 2, the judges claimed, “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

As precedent, the opinion points to Hunter v. Erickson and Washington v. Seattle Sch. Dist. No. 1. In 1969’s Hunter v. Erickson, the Court considered an amendment to the city charter in Akron, Ohio. The provision held that the city council could not enact housing-discrimination laws without first putting them to a popular vote. The Court held that by placing an additional burden specifically on laws that advance the interests of minorities, the provision violated the equal-protection clause.

Much more troubling is Washington, a busing case from 1982. In Washington, the Supreme Court invalidated a state referendum that ended forced busing for racial reasons, but not busing related to other concerns (such as overcrowding). The initiative, the Supreme Court ruled, “removes the authority to address a racial problem — and only a racial problem — from the existing decisionmaking body [local school districts], in such a way as to burden minority interests,” and was therefore unconstitutional.

If the Sixth Circuit’s ruling follows from Washington, it’s only because Washington is ridiculous. Even in its most narrow interpretation, the equal-protection clause was designed to ensure that in certain circumstances, the government treated people without regard to their race. The use of state legislation to enforce and build upon that protection — to forbid public educational institutions, whether elementary schools or colleges, to engineer the racial composition of their student bodies — can hardly be said to violate the Fourteenth Amendment itself.

And as the Sixth Circuit’s dissenting judge noted, far more recent precedent — the racial-preferences cases of 2003 — made it clear that racial preferences are a “suspect tool” for achieving diversity, that they must be “limited in time,” and that states have considerable leeway in deciding when racial preferences will end.

In short, the Fourteenth Amendment requires states to give their citizens “the equal protection of the laws,” Michigan voters passed a law requiring that people of different races be treated equally in college admissions, and somehow, a three-judge panel of the Sixth Circuit concluded that the two are in tension. The Sixth Circuit — like the Ninth Circuit before it — should recognize that a guarantee of equal protection cannot mandate unequal and blatantly discriminatory treatment.