Is Racial Equality Unconstitutional? - Commentary

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.

Listen to Latest Podcast

Subscribe Now & Pay Nothing