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

Posted By Daniel Greenfield On November 17, 2012 @ 1:25 pm In The Point | 24 Comments

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.”


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