The Sixth Circus and Affirmative Action

In a discussion thread on Patterico’s Pontifications, Milhouse wrote:

Um, how can a constitutional amendment be unconstitutional?

Apparently more easily than he thinks. In Coalition to Defend Affirmative Action v. University of Michigan, the Sixth Circuit Court of Appeals ruled that Michigan’s ban on Affirmative Action violated the 14th Amendment’s equal protection clause, because it “unfairly placed a special burden on supporters of race-conscious admissions policies,” which means that, de facto, the Sixth Circuit said that the 14th Amendment’s equal protection clause as far as race is concerned is unconstitutional!  The New York Times described the ruling as holding:

People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college’s governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the “long, expensive and arduous process” of amending the state Constitution.

“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,” said Judge R. Guy Cole Jr., writing for the majority.

Judge Cole wrote:

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: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. 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. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.

Section 1 of Amendment XIV states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Your Editor fails to see where, in the text of the 14th Amendment there is a “guarantee that all citizens ought to have equal access to the tools of political change.” He does see where the Amendment guarantees to all citizens “the equal protection of the laws.”

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the initial Affirmative Action case, Justice Lewis Powell stated:1

The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.

It would seem to your Editor that if someone petitioning to have race included as a factor in the admissions decision was required, by Michigan’s state constitutional prohibition against such, to seek a state constitutional amendment to overturn the then-current amendment, that would be precisely the same burden which was imposed upon, and met, by those who sought the constitutional amendment in the first place. Judge Cole and the majority would have the person seeking to overturn the state constitutional amendment to bear a lesser burden than those who sought its passage in the first place.

In Grutter v Bollinger, 539 U.S. 306 (2003), the University of Michigan case in which the Supreme Court allowed Affirmative Action to continue, Justice Sandra O’Connor, writing for the majority, quoted Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995):

(W)henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.

Justice O’Connor continued:

We acknowledge that “there are serious problems of justice connected with the idea of preference itself.”2 Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.”3 To be narrowly tailored, a race-conscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” 4

Even under Grutter, Judge Cole’s opinion fails, because he is imposing a lesser burden on those who favor race-conscious government decisions than was the case with those who opposed such.

The Grutter case had it’s own end date:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.”5 Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.”6 . . .

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable.7 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. Since that time, the number of minority applicants with high grades and test scores has indeed increased.8 We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Like the “sell by” date on a gallon of milk, Grutter goes bad by 2028 at the latest. With the acceptance and argument of Fisher v University of Texas,, race-based or race-conscious preferences may be declared unconstitutional as a matter of government action by the end of the Supreme Court’s term in June.9 It’s time to end that nonsense.

  1. There was no opinion in the 5-4 decision which commanded a majority; Justice Powell’s opinion is the most often cited.
  2. Bakke, 438 U.S., at 298 (opinion of Powell, J.).
  3. Bakke, 438 U.S., at 308 (opinion of Powell, J.).
  4. Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 630 (1990) (O’Connor, J., dissenting). Your Editor notes here that Justice O’Connor is quoting a dissenting opinion, her own, in a case in which her opinion did not carry the day.
  5. Palmore v. Sidoti, 466 U.S. 429, 432 (1984).
  6. Brief for Respondents Bollinger et al. 32.
  7. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary).
  8. See Tr. of Oral Arg. 43.
  9. The Fourteenth Amendment has no bearing on private action, though the Civil Rights Act of 1964 does. Your Editor believes that any race-conscious or race-based actions by the government should be declared unconstitutional; if private institutions wish to continue with Affirmative Action, that should be their business, not the government’s.

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