NR’s editorial today draws attention to the precedents the Sixth Circuit relied on to claim that Michigan’s Proposal 2 — which forbids racial discrimination in public colleges’ admissions processes — violates the Fourteenth Amendment’s equal-protection clause.
Over at Minding the Campus, K. C. Johnson makes another good point: These precedents say that you can’t adjust the political process to make it harder for minorities to enact favorable policies. For example, you can’t put a provision in your city charter saying that before the city council enacts anti-discrimination legislation, it has to hold a popular vote.
The primary legal justification for affirmative action, however, isn’t that it benefits minorities, which would be clearly discriminatory. It’s that ensuring “diversity” for all students is a legitimate goal for colleges to have. So, in the contortions it went through to claim it’s illegal to ban racial preferences, the Sixth Circuit turned the argument that racial preferences are themselves legal on its head.