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Why is that quote telling? Because the conclusions regarding affirmative action reached by Judges Cole and Daughtrey would make it permanent. There will never be a time when the elimination of preferential treatment will not disproportionally affect those who have benefited from that treatment, relative to those who have not. Thus, if one accepts the judges’ contention that such disproportion is a violation of the Fourteenth Amendment’s Equal Protection Clause, affirmative action can never be eliminated.
Proponents of Friday’s ruling cited the fact that since the implementation of MCRI, underrepresented minorities fell each year, from 12.6 percent of freshmen admitted to UM in 2006, to 9.1 percent in 2009. Yet last fall, there was an increase to 10.6 percent. Judges Cole and Daughtrey were undeterred. “Proposal 2 reorders the political process in Michigan to place special burdens on minority interests,” they wrote.
The plaintiffs’ lead attorney, George Washington, was ecstatic. “It’s a great victory. It means affirmative action is legal again in college admissions. It means that thousands of talented black, Latino and Native Americans can go to our public universities,” he said. No, it doesn’t. What it means is that thousands of students will once again be held to a different (i.e. lower) standard than other students in the college admissions process, based on nothing more than ethnic considerations.
This is affirmative action’s fatal flaw. First instituted in 1961 as a program aimed at increasing equality of opportunity, affirmative action has devolved into a program attempting to engineer equality of results. The pernicious nature of this devolution was emphatically revealed in 2009 in New Haven, Connecticut, where city officials attempted to invalidate the results of a 2003 firefighter promotional exam passed by Hispanics and Caucasians, because no African Americans were among the qualifiers. The city contended it invalidated the test out of fear of a potential racial discrimination lawsuit. The Supreme Court ruled 5-4 that the failure to achieve a pre-determined outcome regarding diversity was no grounds for tossing out the test scores.
It should be noted that Supreme Court Justice Sonia Sotomayor, an Obama nominee, sided with the city at the federal appeals level prior the the ruling by SCOTUS (Supreme Court of the US). Her argument at the time sounded much like that of Judges Cole and Daughtry. “We’re not suggesting that unqualified people be hired,” Judge Sotomayor told the firefighters’ lawyer Karen Lee Torre. “[I]f your test is going to always put a certain group at the bottom of the pass rate so they’re never, ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try to look and see if it can develop that?”
Note that for Sonia Sotomayor and doubtless those who think like her, the fault is with the test, as opposed to the people who take it; those who fail, despite various levels of individual effort, can be lumped into a group; and the ethnic composition of that group constitutes de facto discrimination if they fail to pass the test.
Lawyers who achieved victory in Michigan have announced their intentions to file a lawsuit in California in an effort to overturn Proposition 209, a referendum approved by 54 percent of the voters in 1996. It also eliminated considerations of race, ethnicity or gender from being used as determining factors by public institutions. Prop 209 was also held up initially, when U.S. District Court Judge Thelton Henderson made a ruling virtually identical to that of Judges Cole and Daughtrey: He decided that eliminating affirmative action would disproportionately affect those who benefitted from it. Henderson was overturned by the Ninth Circuit Court of Appeals, and the law remains in effect.
Critics of this latest ruling expect it will also be overturned. “It’s saying the people have no right to insist that everyone be treated equality. It places the ultimate decision in the hands of the university–that they are supreme ones,” said Ward Connerly, an equal rights proponent instrumental in the implementation of both MCRI and Prop 209. “It’s a terrible, terrible decision that will not stand,” he told The Detroit News.
Here’s hoping Connerly is right. If not, we are headed towards a society where any “disparate impact” affecting any sub-group of Americans can be construed as a violation of the Equal Protection Clause. Such a reality would substantially increase the power of government to pick “winners” and “losers” based on nothing more than a pre-determined idea of what a particular outcome should be. The perniciousness of such a concept was recently revealed in this amusing videotape, where students who supported affirmative action were asked to sign a petition demanding that a school’s basketball team, dominated by black athletes, be forced to accept a certain number of white and Asian players on the team in order to achieve diversity.
Be sure to watch it — and note what happens when inexorable logic meets preconceived notions of good intentions head on.
Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.
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