False on Michigan

by Roger Clegg

The New York Times is off track in its lead editorial today on a Michigan ballot initiative that the Sixth Circuit insists is a violation of the Equal Protection Clause.

The Supreme Court has said that racial preferences are barely permissible in limited circumstances; it has never suggested that states are required to allow them. To the contrary: The Court has made clear that the U.S. Constitution’s Equal Protection Clause itself stands for the proposition that racial preferences are not to be left to politics as usual, so it is absurd to say that the Clause is violated if the people of Michigan come to the same conclusion. The logic of the Sixth Circuit’s decision would also make any statute — federal, state, or local — banning discrimination and preferences illegal, since they likewise make it harder to get preferential treatment. 

It is also misleading to assert that such preferences favor “racial minorities” these days, since they generally discriminate against Asian and Arab Americans, as well as some Latinos. What’s more, the supposed beneficiaries — like African Americans — end up being hurt by them, too, through mismatch and stigmatization, for example. 

It’s been frustrating that the courts have continued to allow racial preferences in university admissions, despite constitutional and statutory texts to the contrary — and now a court has said that the people themselves cannot lawfully ban such discrimination. Here’s hoping the Court will put an end to this divisive and unfair nonsense as soon as possible, beginning with this case. 

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