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In what might be characterized as an Orwellian decision, a federal appeals court overturned the Michigan Civil Rights Initiative (MCRI) which had eliminated the use of race and gender preferences in college admissions, along with government hiring and contracts. The initiative, known as Proposal 2, had been approved in 2006, when 58 percent of voters expressed their preference for eliminating affirmative action. The court, in a 2-1 vote, ruled that the women and minorities who benefited from affirmative action were most affected by its elimination, resulting in a violation of the Fourteenth Amendment’s Equal Protection Clause. Michigan Attorney General Bill Schuette has vowed to appeal the ruling.
“MCRI embodies the fundamental premise of what America is all about: equal opportunity under the law,” Schuette said in a statement. “Entrance to our great universities must be based upon merit, and I will continue the fight for equality, fairness and rule of law.” The Sixth U.S. Circuit Court of Appeals concluded otherwise. “We find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities,” wrote Circuit Judge R. Guy Cole. Judge Martha Craig Daughtrey concurred, while Judge Julia Smith Gibbons dissented.
Judges Cole and Daughtrey further noted that the way the law was created was also flawed. Because it was enacted as an amendment to the state’s constitution, it can only be changed or rescinded by another statewide vote. Thus, they concluded, this places an unfair burden on minorities who object to it, adding that MCRI’s supporters could have found “less onerous avenues to effect political change.” They further noted that the initiative “reorders the political process in Michigan to place special burdens on minority interests.” Judge Julia Smith Gibbons dissented, noting that Michigan voters have not “restructured the political process in their state by amending their state constitution; they have merely employed it.”
If it stands, the ruling overturns a 2008 decision by a federal judge in Detroit, who had upheld the law as “race-neutral.” As of now, MCRI stays in effect pending the appeal. AG Schuette said he will appeal to the full Sixth Circuit, rather than take the case to the U.S. Supreme Court.
Where is this headed? In rejecting the law, Cole and Daughtrey cited two Supreme Court rulings they considered germane. One was Hunter v. Erickson, a 1969 case involving the repeal of a fair housing law in Akron, Ohio. The other was Washington v. Seattle School District No. 1, a 1982 ruling which overturned a law aimed at preventing the use of mandatory busing to integrate schools in Seattle. These two cases “provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely,” Cole and Daughtrey contended.
Yet the Supreme Court has also upheld laws banning affirmative action. In two 2006 cases, Parents v. Seattle and Meredith v. Jefferson, the court ruled 5-4 that an effort to maintain diversity by assigning students to schools on the basis of race in Seattle and Louisville, respectively, was unconstitutional. But the Supreme Court has also contributed to the confusion as well, perhaps no more so than in its landmark 1978 ruling in the Regents of the University of California v. Bakke case, banning race-based quotas in college admissions — even though it contended that such institutions have a “compelling state interest” in promoting diversity.
How compelling? One of the five black students admitted to the UC medical program instead of Bakke was Patrick Chavis, whose subsequent career was championed by supporters of affirmative action. Unfortunately, those accolades clashed with subsequent reality. In 1998, Dr. Chavis’ license to practice medicine was revoked for being “grossly negligent” in caring for seven liposuction patients, one of whom died when he left her bedside.
Despite this reality, affirmative action policies continued to be reviewed by the Supreme Court. In 2003, SCOTUS made two rulings with respect to admissions policies at the University of Michigan. In Grutter v. Bollinger, the court ruled that race may be used as “one factor among many” in deciding admissions to UM’s law school — even as in Gratz v. Bollinger, the judges ruled that the use of race in the university’s undergraduate program was not narrowly tailored enough to achieve its asserted interest in diversity. In that program, UM had granted admissions to students based on a certain number points on their applications, as determined by several criteria. One of those criteria was 20 points awarded solely for “membership in an underrepresented racial or ethnic minority group.” The court rejected that idea, because it made race “decisive” for students who were otherwise minimally qualified.
The most telling quote from that split decision was written by former Supreme Court Justice Sandra Day O’Connor. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education,” she wrote. “Since that time the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
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