A Color-Blind Society Gets Overruled


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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 Because it was enacted as an amendment to the state’s constitution, it can only be changed or rescinded by another statewide vote.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 casesParents 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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  • waterwillows

    It is positively a criminal thing when stupid is allowed to win and rule.

    Much of this affirmative action is a promotion of stupidity. Look at the overall results. Do you see a road that will lead to anything but the elevation of mediocre?
    It is only 'ability' to do the job, study the subject or take the lead, that should be the major deciding factor.
    Just because someone is another color is not a good enough reason.

    • Rifleman

      You're right, and considering the socialist ideology behind it, the "overall results" are intentional.

  • Chezwick_mac

    It'll go to the Supremes…and once more, Anthony Kennedy will decide what is law in America.

  • Rifleman

    Either one is against institutionalized racial discrimination or one is not. One may notice, the democrat party has always been for it, first against minorities, now against anglos. It's the same basic mentality, they just switched targets.

  • mrbean

    Stacey E. Blau says:

    Almost every debate about affirmative action eventually shifts to a discussion of certain women and minorities: the truly deserving. The truly deserving are the women and minorities who are exceedingly intelligent, impeccably qualified but will have to forever endure the unspoken assumption that they got where they are because of their gender or race. In seeking to right past wrongs and foster diversity, critics say, affirmative action does nothing more than insult the truly deserving because it too often promotes the less-than-qualified. Critics regularly cite this point as a prime failure of affirmative action.

    • StephenD

      Take your argument to the next step and you'll see that the elimination of affirmative action will take away this assumption. If everyone is truly on an equal plane and not the product of an exclusionary program who could have any "unspoken assumptions" as to their qualifications?

      • mrbean

        There is no such thing as an equal plane, some peoplwe are smarter than others. some more skilled than others, some have more experience than others, some are better looking than others, on ad infinitum…. What Liberals want is equal outcomes – like PC kiddie ball – no one keeps score and eveyone gets a trophy so their false self esteem doesn't get bruised.

  • sharpsrifle

    Affirmative Action is just another way for a minority who is an unqualified idiot to whine his way into a job or other slot in place of a minority who IS qualified. Look at Hussein and Mooch-elle Antoinette…neither one has the sense of a retarded amoeba, yet they both went to "elite" universities, had every door in the world held open for them, and HATE everything about the society that gave their worthless behinds breaks it doesn't give people NOT of their ethnic backgrounds. Someone like Herman Cain, who actually worked and learned and demonstrated ability, is a great example of what this country SHOULD be…while Hussein and Chewbacca are examples of the failure of institutionalized black racism, AKA, "affirmative action" (or, if you prefer, the "Unqualified Moron Self-Esteem Promotion Enhancement Program").

    • Dennis X

      When was that affirmative action election?

  • Lfox328

    I really can't see that Sotomayer's words aren't a slur on minorities. There is no reason that they can't pass those tests; to imply that they never could insults their intelligence.

  • Stephen_Brady

    An example of reverse-discrimination:

    In the summer of 1980, I had finished my junior year in college. I had a 4.0 average and was running out of courses to take in my major. I had also won a university-wide award for scholastic excellence. Then, it came …

    I received a notice from the Dept of Education. My BEOG (now the Pell Grant) would not be renewed for my senior year. The reason given: Affirmative Action. I'm white, you see.

    Institutionalized racial discrimination. That's what it was …

  • pagegl

    Continuing affirmative action forces race to be an issue. Human nature is such that if you flagrantly force people to accept something they believe is inherenty unfair they will have issues with those that benefit. Any bozo who doesn't understand or refuses to understand that has an interest in maintaining that unfair situation.

  • http://baersart.com Jane

    I am a first generation American on one side and seceond generation Amrican on the other. My parents are Scadinavian. to me many white Americans are mixed.

    • http://baersart.com Jane

      to a Scandinavian like me, those who used ot be called hillbillies look mixed…Elvis, Johnny Cash, etc. (kind of like some Mexicans)