Federal Appeals Court Rules that Not Allowing Racial Preferences Violates Equal Protection Clause of the Constitution

Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is a New York writer focusing on radical Islam. He is completing a book on the international challenges America faces in the 21st century.


In other news, the Court also ruled that not allowing the government to outlaw newspapers violates Freedom of the Press.

The problem with turning the judicial branch into the gatekeepers of the Constitution is that it allows lawyers in black robes to declare that the Constitution means the exact opposite of what it means.

And this latest decision in COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN) v. The University of Michigan is a true tribute to George Orwell.

The U.S. 6th Circuit Court of Appeals declared Michigan’s ban on affirmative action in university admissions approved by voters in a 2006 ballot initiative unconstitutional because it violated the Equal Protection Clause of the United States Constitution.

No, hold your applause. These are the relevant words of the Equal Protection Clause. “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” and they clearly specify equal, not privileged.

To an ethical person this would mean that every person is equal, regardless of race. To a liberal, this means that inequality can be coded into law so long as they can argue that it is needed to counter existing inequality.

The U.S. 6th Circuit Court of Appeals is a triumph of such insanely convoluted reasoning that the family of Franz Kafka ought to ask for a share of the proceeds.

Here is the summarized opinion.

“A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy… .  The
same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy.  That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2.

The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.  We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional.”

This argument makes slightly more sense if you’re standing on your head because then your brain will be facing the same position as the people who came up with this one.

Since it is easier for alumni students to push for alumni friendly admissions policies than it is for black students to force universities to accept them based on race, a clause created to prevent discrimination must be overturned to enforce discrimination as the only way to prevent discrimination.

Of course, since alumni students also find it easier to raise money for college, a black student who robs a liquor store to pay for his tuition must be found not guilty and laws against robbing liquor stores must be struck down based on the Equal Opportunity Clause.

One decision makes as much sense as the other.

The US 6th Circuit Court of Appeals ruled in favor of a challenge to the constitutionality of outlawing affirmative action because it places a burden on minority students wishing to compel universities to adopt affirmative action.

“In other words, the sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even  consider using race as a factor in admissions decisions.”

In the US 6th Circuit Court of Appeals reading, the Constitutional guarantee of equal protection provides equal protection to promoting racial discrimination.

But if we’re going into Alice in Wonderland territory, why call this an Equal Protection Clause issue? Doesn’t Proposition 2 place an equal burden on white students wishing to compel universities to adopt white racial preferences?

If you want to see how the Equal Protection Clause got raped in a back alley by judicial activists, here it is.

“[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.”  Hunter v. Erickson, 393 U.S. 385, 393 (1969).

That sounds fine until you think about it for a few minutes. We’re transitioning here from legal equality to a nebulous concept that gives a blank check to legislation on behalf of a minority group and treats any democratic or legal resistance to legislation on behalf of that group as being unconstitutional.

This is naked privilege and a complete distortion of equal protection.

the political process doctrine hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.

Except of course that is what affirmative action does.  Minorities in Ohio are not under any special burden… except when it comes to demanding special privileges and placing obstacles in the paths of other people. And the US 6th Circuit Court of Appeals has ruled that not allowing them to create special privileges and place obstacle in other people’s paths is placing obstacles in their path.

And we’re right back to the core argument of affirmative action that racism justifies racism.

the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers.  We must therefore have some way to differentiate between the constitutional and the impermissible.  And Hunter and Seattle provide just that.  They set the benchmark for when the majority has not only won, but has rigged the game to reproduce its success indefinitely.

Has it really? Is the court actually saying that without affirmative action, the education system is completely rigged against black students who will never be able to compete in a race-neutral environment? That’s an assessment of black intelligence worthy of David Duke.

Without racial preferences, has the game been “indefinitely rigged” that blacks will never be able to succeed? That’s the opinion of the US 6th Circuit Court of Appeals.

Because Proposal 2 entrenched the ban on all race-conscious admissions policies at the highest level, this last resort—the campaign for a constitutional amendment—is the sole recourse available to a Michigan citizen who supports enacting such policies. That citizen must now begin by convincing the Michigan electorate to amend its constitution—an extraordinarily expensive process and the most arduous of all the possible channels for change.

And it’s how democracy works. And judges are the enemies of democracy. And so we have a ruling which says that no policy can be outlawed or restricted so long as it benefits minorities and minorities would have to work too hard to get their way.

Here we have Privilege at its ugliest. An entire state or country counts for nothing. Democracy counts for nothing. The goal of the entire system is to protect Minority Privilege.

This majority opinion was written by Judge R. Guy Cole, Jr., an African-American Clinton appointee. But there is an alternative view that comes from some time ago, from Zora Neale Hurston.

“If I say a whole system must be upset for me to win, I am saying that I cannot sit in the game, and that safer rules must be made to give me a chance. I repudiate that. If others are in there, deal me a hand and let me see what I can make of it, even though I know some in there are dealing from the bottom and cheating like hell in other ways.”

  • riverboatbill

    The court will soon change the color of its robes to white,and add hoods.

    • wayne

      Well, most judges are ,, in fact , democraps ,, right lol. And democraps did ,, in fact start the K K K way back when :) .

    • Brian L.

      I would say that the reverse is true. The KKK as you are talking about would have NEVER done what these judges have done.

  • http://whatdirectdemocracymightbe.wordpress.com/ Daryl Davis

    It always seems to be the liberal argument that one bad policy deserves another. Alumni legacies ought not receive admissions favoritism; just as big corporations ought not receive special subsidies or individual tax considerations. And no racial minority ought receive them either.

    Thoughtful fiscal conservatives must at some point realize that the number of constitutional amendments required to right this drift toward a socialist purgatory amounts to the rewriting of the Constitution. Clinging to the Founder's original intent is a fool's recourse, as subjective interpretation has proven too much for the once-impressive document. Better to adopt a new constitutional system — one that subjects all Justices, for instance, to the same recall vote that truly accountable politicians must be.

    We require a system in which no one is above the law — let alone above the People.
    http://whatdirectdemocracymightbe.wordpress.com/i

    • Soylent Green

      Sorry, but I can't see depending on the obviously illiterate and uninterested electorate to SOLVE the problem tomorrow it has CREATED today.

  • Rosey

    The next logical and necessary step is to kick the whole question up to the Supreme Court for a final judgement. I believe that will happen and this Fed Circuit Appeal decision. We will have to 1) hope the court decideds to hear the case, and hope to hell Roberts is sane and applies the "real" — not made up — Constitutional law. Then, of course, if not, we can look to a whole generation of Elizabeth Warren type entries into affirmative action programs. Sarc

    • Joe

      The Supreme court will never hear it. Anything that smacks of reverse discrimination is avoided by that court like it was some sort of plague. They won't hear it becuase they can't ,in good conscience, defend it. Like the Federal government giving minority preference in its hiring programs. It is reverse discrimination no matter what you call it.

  • Mary Sue

    While I expected something like this from the 9th Circus (didn't know how liberal the 6th one had gotten), I am actually not surprised.

    The majority of the justices on the 6th Circus have obviously bought into the Identity Politics and Ethnic Studies rationale. They seriously and honestly believe that "affirmative action" is the only logical counter to the "legacy alumni admission".

    But, wait. If a significant number of black students go to University, won't there at some point be children of these students? Is not the Alumni Legacy option open to these children? Methinks these justices think all black students are from the hood, where nobody went to college for whatever reason. (Poverty, bad grades, disinterest based on "git outta here with yo' book learnin' (because culturally, Education is seen as a white thing and is disdained based on the Oreo factor)". (Chris Rock once advised homeowners to hide their money in books because "Books are kryptonite to n____s!")

  • Mary Sue

    I bet Barack and Michelle-my-belle's children get Legacy Alumni rights!

  • WilliamJamesWard

    I think the 6th Circuit is out to undermine the Constitution and could care less about
    any form of affermative action. The use of illogic while insulting is just that and insult to
    America, it's Constitution, the idea of justice being guaranteed with equality without
    special privilege. The left is at war against America, the Constitution and law with a
    desire to use as a tool the noxious affront of poised insanity………………….William

    • huapakechi

      Unfortunately, you are correct.

  • Anon

    Actually, the decision does make some sense. If legacy preference policies gives privilege to offspring of alumni, and if alumni are disproportionately white, then this does amount to white privilege (even though it benefits a certain group of whites, not all whites). It is not "equal opportunity."

    However, the problem with this decision is it attempts to make two wrongs equal a right. It fights privilege with privilege. It does nothing for non-legacy white students who face discrimination from the current policy. So the sensible solution is to do away with BOTH legacy privilege AND affirmative action. This would extend equal opportunity to students of all races. Legacy privilege restricts the opportunities of non-legacy whites the same as non-legacy blacks, so removing it would benefit everyone except those who rely on legacy privilege rather than merit.

    However, instead we have affirmative action. So the next move could be for non-legacy white students to point out that they are doubly discriminated against–by BOTH the legacy policies AND the affirmative action policies.

    • Larry

      Don't be silly, whites can never be discriminated against because, after all, they are white.

      • Mary Sue

        slight clarification, whites are said to be unable to be discriminated against because they're the ones "in power." To me that is completely meaningless, but the Ethnic Studies think it's what the world is.

        Of course, were the situation to be reversed, they'd still claim whites can't be discriminated against. They'll just make up another excuse as to why not.

    • Ed6600

      No, actually, the decision does not make "some sense." You agree with the anti-white racist court on alumni legacy because you are either a liberal or a gullible, easily influenced "conservative." If the legacy preference was manifestly discriminate against the offspring of black alumni, or if the legacy preference was deliberately directed, like a poll tax, against blacks, you could then truthfully say that legacy preference amounted to "white privilege." However, neither is the case in alumni legacy preference. I believe that the motto of the British chivalric Order of the Garter would be most appropriate here: Honi soit qui mal y pense (Shame on him who thinks this evil).

  • http://twitter.com/Kenrick66 @Kenrick66

    The most logical action to take is to get the government out of education. But that's a corollary of getting the government out of the economy and out of our pockets.

  • Morry

    Another — more direct (& possibly better?) — analogy for the court's decision, WHICH ALSO HAS VAST GENERAL IMPLICATIONS FOR THE FUNDAMENTAL NATURE OF OUR SYSTEM OF GOVERNMENT:

    When a law or legal procedure is deemed counter to the equal protections clause (ie, UNCONSTITUTIONAL), then this decision deems that the remedy is NOT to repeal that wrong law or declare it unconstitutional, but rather to assert yet ANOTHER law or court order which a few judges think will somehow precisely counter-act the effect(s) of the unconstitutional law (EVEN IF THAT NEW LAW WOULD BE, BY ITSELF, UNCONSTITUTIONAL).

    In other words, the court has decided that its job is NOT to correct wrong laws, but instead to let them stand and then to operate by the principle that "TWO WRONGS MAKE A RIGHT" by ordering a standing counter-measure. (And not-so-incidentally, the court thus also deems that the variable, unpredictable, non-uniform and highly SUBJECTIVE decisions of VARIOUS SMALL GROUPS OF MEN (such as college admissions board members), RATHER THAN THE LAWS THEMSELVES, AS WRITTEN AND DULY PASSED BY THE PEOPLE'S REPRESENTATIVES, may be permitted by the judiciary branch to stand as the law of the land EVEN IF UNCONSTITUTIONAL on their own merits.

    Need I explain why this will lead to an almost infinite multiplication of the number of laws on the books, a multiplication APPLIED TO the overwhelmingly enormous number of laws we already have?

    SUMMARY:
    This decision establishes 2 VERY disturbing NEW precedents, each of which undermines a FUNDAMENTAL pillar of the legal philosophy our nation's system is built upon :
    1. That 2 (or more) illegal acts are OK if SOME person(s) deem(s) that their practical effects cancel each other out — ie, that 2 wrongs co-existing side-by-side make a right.
    2. That the Constitution mandates a Federal Gov't which rules according to the opinions of an unlimited (potentially infinite) random assortment of small groups of individual MEN, and NOT according to a relatively fixed body of clearly defined LAWS.

  • Lughon

    Blacks are less intelligent and handicapping Whites is the only way for them to succeed. We should ask for affirmative action in Pro Sports – especially Basketball.

    • huapakechi

      Would you care to debate that subject with Dr. Thomas Sowell or Justice Clarence Thomas?

  • Lughon

    Thank you for your open mindedness. Expediency is Truth, right?

  • huapakechi

    Lewis Carroll's eloquent discussions from the "Alice" books have come to the judiciary.

    Should we impose a "Three Strikes" rule on our judges, removing them from the bench AND the practice of law when they've made three such bonehead rulings as the one described above? Justice would be better served if there were consequences for judicial stupidity and legislating from the bench.

  • Zaduba

    As for alumni preferences in relation to affirmative action, check out this November 15 Detroit News article, "It's time to end alumni preferences", at http://www.detroitnews.com/article/20121115/OPINI….

  • larryfrom10ec

    Hard to tell if we are livng in "1984" or "Atlas Shrugged". Maybe a hybrid.

  • mark

    I don't like the result, but if it's true that "legacy" preferences were permitted, it makes no sense to constitutionally prohibit racial preferences. If you allow one preference you have to allow all. I am not arguing for affirmative action, which I consider unconstitutional, despite what any court says. Michigan needs to fine tune the amendment, or let admission committees make their own admission determinations.