Yesterday the full U.S. Court of Appeals for the Sixth Circuit held that Michigan's Proposal 2 violates the U.S. Constitution's Equal Protection Clause.
Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan "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." The Equal Protection Clause provides that "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."
The mind boggles. Proposal 2 not only does not violate the Equal Protection Clause, and is not only quite consistent with it, but is indeed nothing more than an elaboration on it.
But here is the court of appeals' reasoning:
A student seeking to have her family's alumni connections considered in her application to one of Michigan's esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school's governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state's constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution--a lengthy, expensive, and arduous process--to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change.
To which the answer is: The same might be said of a member of the Ku Klux Klan who wanted the University of Michigan to adopt a whites-only policy of racial segregation. Would this court have ruled that the Klansman's equal-protection rights are violated by Proposal 2?
That seems unlikely. The decision was driven by its politically correct result, which is why the decision was 8-7 along partisan lines: Every vote in the majority was by a Democrat-appointed judge (except, technically, for one who was originally nominated by President Clinton late in his term and then, in a misguided gesture of conciliation, renominated by President Bush at the beginning of his), and every dissenter was appointed by a Republican president. Elections do indeed have consequences.
One's first reaction is anger and frustration.
Consider: The saga may be said to begin in 1978, when a majority of the Supreme Court in the Bakke case decided that Title VI of the 1964 Civil Rights Act does not prohibit racial discrimination in university admissions, even though it reads, "No person in the United States shall, on the ground of race, color, or national origin ... be subjected to discrimination [by federally funded universities]...." The fact that the national legislature had, by the clear terms of a statute it had passed, banned racial preferences in university admissions was just ignored.
So those opposing such discrimination would have to meet the standard the Court uses in constitutional cases, which allows the discrimination if it is "narrowly tailored" to a "compelling" interest. As the discrimination became more and more widespread and entrenched, hard-fought lawsuits were in fact brought in Texas and then Michigan and taken through the courts of appeals, and then finally in 2003 the Supreme Court agreed to revisit the issue. Alas, the Court struck down some of the discrimination but also held by a 5-4 margin that the "educational benefits" from "diversity" provided such a compelling interest, at least for another 25 years (!).
So it was back to the political process in Michigan, where thousands of petition signatures were gathered and then Proposal 2 was passed with 58 percent of the vote after a bruising campaign. And now we are told that this was a waste of time because using the political process this way is unconstitutional. Again, it's frustrating.
All this, in the courts and at the ballot, and all because of this seemingly unexceptionable desire: That universities not discriminate in admission on the basis of skin color or what country someone's ancestors came from.
But, on reflection, we can make lemonade from this lemon.
The state attorney general has already announced that he plans to take the case to the Supreme Court - thank goodness - which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit. When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit's decision - and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result. So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.
And wait, there's more: It has already been my hope that the recent election results, and in particular the demographic spin being put on them, should push the conservative justices to ban racial preferences, period, in the recently argued Fisher v. University of Texas. It's clear that the composition of the Court is not going to get any better and may get worse, and it's clear that the political branches are not going to address this problem - and, indeed, the country is getting to the point where political power is wielded in a way to create a racial spoils system in university admissions, contracting, you name it. Therefore, our justices will reason, we have to take this off the table now.
The fact that the Court knows that the Sixth Circuit case is now in the wings may make this course of action even more attractive in Fisher. Yesterday's decision underscores the need for a clear statement from the Court in this area, and it is, after all, even easier to explain why banning racial preferences is not unconstitutional when there is a Supreme Court decision that holds that using racial preferences is unconstitutional.
You have to hand it to our opponents (in this case the lawsuit was brought by an organization whose name promises to defend affirmative action By Any Means Necessary, or "BAMN"): They never give up. So we can't either. They have the advantage of being unprincipled, but we have the advantage of being right - of wanting to end racial and ethnic discrimination and preference, which is the only tenable legal regime for our increasingly multiethnic and multiracial nation.
Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by Pacific Legal Foundation in the Sixth Circuit case and in Fisher.