Bench Memos

Schuette: The Court Owes Americans a Strong Ruling Against Affirmative Discrimination

Today the U.S. Supreme Court heard oral argument in Schuette v. BAMN, a case in which a federal appellate court held — astonishingly — that Michigan voters somehow violated the U.S. Constitution’s Equal Protection Clause by endorsing equal treatment for everyone regardless of race or sex.

At issue is Proposal 2 (the Michigan Civil Rights Initiative), a 2006 ballot measure that amended the state constitution to provide that state and local government agencies (including public universities) “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Compare Michigan’s mandate for colorblind equal rights to the Equal Protection Clause, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

To suggest that the two are in conflict — as the U.S. Court of Appeals for the Sixth Circuit did — is mind-boggling. Proposal 2 is not only quite consistent with the Equal Protection Clause, it is really nothing more than an elaboration on it.

So the Supreme Court should uphold Proposal 2. Indeed, the courts should feel some responsibility to avoid an outcome in which, perversely, it is impossible to stop the government and government institutions from engaging in discrimination and preferential treatment. The judiciary is a repeat offender in thwarting the popular will in this area as expressed in both constitutional and statutory law, and so the Court should feel obliged to keep this mess from getting any worse than it already is.

In fact, the Court should take this opportunity to make some amends to those who have been fighting for the principle of colorblind law but have been thwarted by bad judicial decisions. It can do so by reaffirming the strong presumption against any government use of racial and ethnic preferences — not only in education, but also in contracting and employment, the two other arenas in which they are commonly found, and which are also addressed by Proposal 2.

The lower-court decision here complained that Proposal 2 makes it harder for some groups to lobby for preferential treatment. But the Equal Protection Clause is in the Constitution precisely because racial preference is not to be left to everyday politics, academic or otherwise. The United States has seen institutionalized discrimination in favor of whites be replaced with institutionalized discrimination against whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state and local actors.

University officials in particular are extremely stubborn here, and so the people have to step in to get the racial politics out. Studies by the Center for Equal Opportunity showed that the use of racial preferences got worse during the period between the Supreme Court’s ruling striking down the University of Michigan’s use of racial preferences in undergraduate admissions in 2003 and the passage of Proposal 2 in 2006.

Furthermore, what the people of Michigan did in banning politically incorrect and politically correct preferences simply vindicates what federal law is all about. The people of the United States guaranteed “the equal protection of the laws” for all Americans with the passage of the Fourteenth Amendment, and there is no phony-baloney “diversity” exception to it. Congress explicitly forbade any recipient of federal money (which includes all public universities) or public employer from engaging in any racial or ethnic discrimination with the passage of the 1964 Civil Rights Act, again with no judge-made exceptions. And Congress also banned such discrimination with the various enactments of 42 U.S.C. § 1981. 

The existence of these laws should come as no surprise, since poll after poll has shown that racial preferences are unpopular, and are becoming more and more so. And note, too, the hypocrisy of the Left, which has often argued that the issue of racial preferences should be left to the political branches — but also argues that laws banning such preferences should be ignored and is now arguing that the people should not be allowed to act, period.

There are other problems with the Sixth Circuit’s decision, too. It is not at all clear that Proposal 2 hurts African Americans (especially in light of the mismatch problem it removes — that is, the fact that admitting students with significantly lower qualifications simply sets them up for failure since they are more likely to flunk out, drop out, get poor grades, and switch majors); and it clearly helps other minorities, like Asians, who typically are at the short end of preferences. And the logic of the Sixth Circuit’s decision would also make it illegal to ban discrimination and preferential treatment through simple legislation, which would call into question a colorblind law like the 1964 Civil Rights Act, as well as state-constitutional civil-service rules.

The voters in Michigan were entirely correct in banning government discrimination on the basis of skin color or what country someone’s ancestors came from. Recent Census data show America is more and more a multiracial and multiethnic country. In such a country, it is simply untenable for the government to classify and sort people on the basis of skin color and national origin, and to treat its citizens differently — some better, some worse — depending on which silly little box is checked.

A racial spoils system will always tempt public officials, especially in government contracting, employment, and education — precisely the areas addressed by Proposal 2. The Court has an opportunity to rule decisively against racial spoils and in favor of racial nondiscrimination. 

— Roger Clegg is president and general counsel of the Center for Equal Opportunity. Joshua P. Thompson is an attorney with Pacific Legal Foundation. CEO joined an amicus brief filed by PLF in the Schuette case.


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