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Archive for July 3rd, 2011

The Zombie of Affirmative Action rises from the grave

Posted by Dana Pico on 2011/07/03

From Jim Lynch of bRight & Early:

Logic that makes my head hurt

It’s Friday and I’m reading a few stories when I read this headline, Court strikes down Michigan ban on race in college admissions. So, I clicked over and started reading. Here, in part, is what I find:

Michigan’s ban on using race and gender as a factor in admission to public colleges and universities was overturned today by a federal appeals court, which said the voter-approved measure harms minorities and is unconstitutional.

Let me see if I have the facts right so far. A law that “bans using race and gender as a factor in admission to public colleges and universities” is unconstitutional because it discriminates against minorities by not discriminating in favor of them? The law, according to the 2 judge majority, violates the equal protection clause because it doesn’t allow schools to treat people unequally? Is that what you’re reading here?

That’s some really twisty pretzel logic, but there was more.

George Washington, the chief attorney for the law’s opponents, applauded the decision today.

“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,” Washington said.

Is Washington saying that thousands of talented blacks, Latinos and Native Americans couldn’t go to public universities based on their merit, that they are only able to gain admission by preferential treatment based on race and skin color?

Affirmative action has never made much sense to me. How in the world can you prevent discrimination by using, what can only be described as, discrimination? This decision makes my head hurt.

In 2003, the Supreme Court decided two related cases from the University of Michigan. In Gratz v Bollinger [539 U.S. 244 (2003) ] the Court held that hard, numeric quotas for minority admissions were unconstitutional, but in Grutter v Bollinger [539 U.S. 306 (2003)] the Court left open the door to consider race as one factor among many, as long as such considerations were narrowly tailored to achieve a goal. Associate Justice Sandra O’Connor, in delivering the opinion of the Court, wrote:

We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). 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.”

In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”).

The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J. A. Croson Co., 488 U.S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977) (“It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all”).

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. 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). 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. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today

Note that while the Court allowed certain Affirmative Action plans, it did not require them, and spoke approvingly of “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, (which) are currently engaged in experimenting with a wide variety of alternative approaches.” The Court certainly did not hold that state laws prohibiting racial discrimination in university admissions were unconstitutional, and actually saw them as an ultimate goal.

In November of 2006, Michigan voters considered, and approved, 58% to 42%, the Michigan Civil Rights Initiative, an amendment to the state constitution which bans the use of racial, ethnic, gender, or national origin considerations in state government decisions. But now the Sixth Circuit Court of Appeals has held, in effect, that Affirmative Action, to the extent allowed by the Supreme Court, must be maintained.

Their logic, however, is curious. From the Court of Appeals in Coalition to Defend Affirmative Action v. Regents of the University of Michigan:

The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief 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. Ensuring the fairness of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face.

Yet the judges seem to believe that while “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,” it is perfectly acceptable, and even constitutionally required, for the first runner to run farther or scale obstacles not in the second runner’s course. More, the judges are very worried about perceived obstacles which general societal conditions, real or imagined, may place in the minority applicant’s path, obstacles which may not be subject to the restrictions of the Constitution, yet their solution is to burden non-minority applicants with restrictions which are composed wholly of government action, something which is entirely subject to the restrictions of the Constitution.

One would suspect that the Supreme Court might reverse this odious ruling, but it is quite possible that this decision will never reach the Supreme Court. The Defendants, the Regents of the University of Michigan et al, are probably pleased that they lost. State Attorney General Michael Cox, designated as an Intervenor-Defendant-Appellee in the Court’s ruling, and a Republican, might choose to try to appeal.

But, at some point, we have to come back to the Fourteenth Amendment, the first section of which says:

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.

Justice O’Connor, determined to preserve some form of Affirmative Action, but still obviously uncomfortable with the program’s clear contradiction with the basic Constitutional guarantee of equal protection of the laws, concluded:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

That was 2003, eight years ago; only seventeen years remain of the Court’s twenty-five year time frame. What will our friends on the left argue, come 2028, if some minority group or other has not achieved equal average SAT or ACT scores, if the members of some particular group earn less money on average or have lower rates of home ownership?

Because, in the end, the Fourteenth Amendment to our great Constitution guarantees, or is supposed to guarantee, the equal protection of the laws, but so many of our oh-so-nobly-intended friends on the left believe that it somehow means the equality of societal outcomes.

Well, the Constitution and the Congress and the state legislatures and the law cannot guarantee that everybody will have equal outcomes. Though our Declaration of Independence, approved 235 years ago tomorrow, says that:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness,

the Signers were saying only that men could pursue happiness, not that they would obtain it, and that all men are created equal under the law; they did not mean that every man was the absolute equal of every other man in fact, knowing that some were smarter than others, some were stronger, some better-looking, some healthier and some wealthier, and, given that the author of the Declaration was himself a slave owner, some whiter. Not one of those brave gentlemen, pledging to each other as they did, their Lives, their Fortunes, and their sacred Honor, ever held that it was the duty or place of government to insure that every man was as wealthy and successful as every other man. Only Karl Marx was daft enough to think that government could ever do such a thing, and not a single one of the attempts to put Herr Marx’s teachings into practice has ever done anything more than share poverty equally . . . equally, of course, except for the nomenklatura!

In the end, the best for which we can hope, the most for which we can strive, is a system in which the government and the laws take no notice of differences in race and gender and ethnicity. That was what the authors of the Fourteenth Amendment wrote, and that was what the authors intended.
Cross-posted from Common Sense Political Thought.

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