High courts are divided on the validity of race and gender preferences.
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 Because it was enacted as an amendment to the state's constitution, it can only be changed or rescinded by another statewide vote.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.''
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.