Commentary Magazine


Topic: Schuette v. Coalition to Defend Affirmative Action

A Good Day for Justice

For some of us, one of the great intellectual delights is reading the opinions of Supreme Court Justice Antonin Scalia. That’s because he’s not only a brilliant legal mind; he’s also a fantastic writer. 

I was reminded of this in reading Justice Scalia’s concurring opinion (joined by Justice Thomas) in Schuette v. Coalition to Defend Affirmative Action, in which the Supreme Court upheld Michigan’s ban on using race as a factor in college admissions. 

The Court, in a 6-2 ruling (with Justice Kagan recusing herself), declared Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. (The justices said that a lower federal court was wrong to set aside the change as discriminatory.)

Justice Anthony Kennedy wrote for the majority. But it was Scalia who, as usual, put things best. Here’s how he begins his opinion:  

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For some of us, one of the great intellectual delights is reading the opinions of Supreme Court Justice Antonin Scalia. That’s because he’s not only a brilliant legal mind; he’s also a fantastic writer. 

I was reminded of this in reading Justice Scalia’s concurring opinion (joined by Justice Thomas) in Schuette v. Coalition to Defend Affirmative Action, in which the Supreme Court upheld Michigan’s ban on using race as a factor in college admissions. 

The Court, in a 6-2 ruling (with Justice Kagan recusing herself), declared Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. (The justices said that a lower federal court was wrong to set aside the change as discriminatory.)

Justice Anthony Kennedy wrote for the majority. But it was Scalia who, as usual, put things best. Here’s how he begins his opinion:  

It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it. [italics in original]  

Justice Scalia ended his 18-page opinion this way: 

As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.  

In citing Justice Harlan, I’m reminded of President Kennedy’s 1963 civil right speech in which he, too, quoted Harlan:    

It ought to be possible, in short, for every American to enjoy the privileges of being American without regard to his race or his color… 

As I have said before, not every child has an equal talent or an equal ability or an equal motivation, but they should have the equal right to develop their talent and their ability and their motivation, to make something of themselves.

We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair, that the Constitution will be color blind, as Justice Harlan said at the turn of the century.

I cite the Kennedy speech both because of its moral force and because it reminds us what liberalism once stood for: justice and equality before the law, judging people by the content of their character and not the color of their skin, and refusing to count by race.

Today liberalism is not just different than this; it’s the antithesis of it. You need only read Justice Sotomayor’s 58-page dissent, where she piles one bad and misleading argument on another, to understand that. Liberalism is now in a position of insisting that subverting equal protection of the law is actually upholding it. 

There are probably better examples of the corruption of language; of using words to “give an appearance of solidity to pure wind,” to quote a line from Orwell. But none come immediately to mind.

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Is Racial Equality Unconstitutional?

This week, the U.S. Supreme Court returns to the question of the legality of affirmative action policies on the part of universities that favor specific classes of applicants such as racial minorities. In the past, the court has preserved the right of schools to consider race provided that each person so favored is considered as an individual rather than making it a function of an illegal quota. Such policies were preserved in a 2003 case that allowed the University of Michigan Law School to have race-conscious admissions as well as one decided last spring that did the same for the University of Texas so long as there are no “workable race-neutral alternatives.” But those determined to keep racial discrimination of this sort alive are back at the court demanding something very different. Now they want to make it illegal for a state’s voters to ban affirmative action.

At stake in Schuette v. Coalition to Defend Affirmative Action is whether an amendment to the Michigan state constitution banning the practice can be ruled unconstitutional. That’s what a 8-7 majority of the U.S. Court of Appeals Sixth Circuit did when it explicably claimed that an amendment that stated that public institutions of higher learning “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin” is a form of discrimination against racial minorities. In doing so, they want to turn the dictionary definition of discrimination on its head in a manner that is worthy of George Orwell’s 1984. If they succeed, it will not only be a setback for the goal of a color-blind non-discriminatory society but to democracy itself.

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This week, the U.S. Supreme Court returns to the question of the legality of affirmative action policies on the part of universities that favor specific classes of applicants such as racial minorities. In the past, the court has preserved the right of schools to consider race provided that each person so favored is considered as an individual rather than making it a function of an illegal quota. Such policies were preserved in a 2003 case that allowed the University of Michigan Law School to have race-conscious admissions as well as one decided last spring that did the same for the University of Texas so long as there are no “workable race-neutral alternatives.” But those determined to keep racial discrimination of this sort alive are back at the court demanding something very different. Now they want to make it illegal for a state’s voters to ban affirmative action.

At stake in Schuette v. Coalition to Defend Affirmative Action is whether an amendment to the Michigan state constitution banning the practice can be ruled unconstitutional. That’s what a 8-7 majority of the U.S. Court of Appeals Sixth Circuit did when it explicably claimed that an amendment that stated that public institutions of higher learning “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin” is a form of discrimination against racial minorities. In doing so, they want to turn the dictionary definition of discrimination on its head in a manner that is worthy of George Orwell’s 1984. If they succeed, it will not only be a setback for the goal of a color-blind non-discriminatory society but to democracy itself.

The argument in favor of overturning the amendment is that by banning affirmative action, the state is denying equal protection to racial minorities favored by such practices. As the New York Times editorial page explains, doing so means that those who would like the state to adopt admissions policies that favor different groups like alumni only have to lobby those who run colleges and universities to see things their way but those who want them to choose methods that discriminate on the basis of race must convince a majority of Michiganders to vote to repeal the constitutional provision that bans it. Since the former process is easier than the latter, that means a constitutional ban of affirmative action must thereby be considered unconstitutional.

But this piece of imaginative liberal legal manipulation passes neither the smell test nor one of rudimentary logic. Michigan’s position is that equality before the law when it comes to race is a fundamental value of law, and thus wrong in of itself — malum in se. As Michigan Attorney General Bill Schuette, said “It’s fundamentally wrong to treat people differently on the color of their skin.”

He’s right. To claim that a legal provision that prohibits discrimination on the basis of race is discriminatory because it injures those who would benefit from such discrimination is not just a poor argument; it’s exactly the kind of legal knot that liberals must tie themselves up in to justify an indefensible policy.

Those who wish to overturn the amendment further argue that the result of the Michigan law has led to a decline in the admissions of African Americans to Michigan Law is down 33 percent since its adoption in 2006. That’s a matter of concern but it says more about the school’s inability to come up with better policies not based in race to make their student body diverse than it does about the virtues of affirmative action.

It has long been apparent that the real problem in admissions has to do with the advantages of class and wealth than those rooted in race. Had Michigan Law and other schools that are committed to race-based admissions more out of political ideology than anything else chosen to institute new policies that helped those who were financially disadvantaged the numbers of African Americans might not have been affected as badly. Admitting someone to a school with less academic qualifications than other students solely because of race has often led to failure for both the student and the school. If instead those committed to affirmative action were to work to create new standards that would help those who are genuinely disadvantaged rather than merely of the right race or background regardless of their income, the result would promote genuine diversity. It would also not contribute to the poisoning of race relations that has often been the bottom line of affirmative action policies that work to discriminate against groups not so favored.

It should also be understood that the amendment in question was approved by 58 percent of Michigan voters. If their democratic will is to be overturned by a court fiat, liberals will have to come up with something better than the arguments they have mustered. To claim, as the Times does, that ballot initiatives are “prone to abuse” or that the process was “rife with fraud and deception” does not protect the integrity of democracy, it basically invalidates it. Were the court to rule against Michigan, it would be saying that the only votes that count are those of judges, not citizens. That is a position that cannot be allowed to stand.

Given recent court trends and the fact that Justice Elena Kagan has been forced to recuse herself from the case because of her involvement with the case while serving in the Obama administration, there is good reason to believe the court will do just that. If so, it will be a victory for the causes of equality before the law, logic and democracy.

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