Is Racial Preference Unconstitutional?Posted: October 12, 2013
George F. Will writes: The marble friezes above the Supreme Court chamber depict 18 great lawgivers, including Moses, Solomon, King John and William Blackstone. Come Tuesday, as the bemused — or so one hopes — justices listen to oral arguments in a case from Michigan, they might wonder why Lewis Carroll is not included. He would have relished the Alice-in-Wonderland argument the justices will hear, which is as follows.
Although the U.S. Constitution’s 14th Amendment says “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” the following provision of Michigan’s Constitution violates the equal-protection guarantee: No public university, college or school district may “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Yes, in Tuesday’s Through-the-Looking- Glass moment, the court will be urged to declare that Michigan’s ban on unequal treatment violates the U.S. Constitution’s equal-protection clause. The U.S. Court of Appeals for the 6th Circuit —divided 8 to 7, with five dissents — has said just that, citing what is called the political-restructuring doctrine.
The argument is that when, in 2006, Michigan voters put in the state’s Constitution the ban against racial preferences in higher education, this complicated the task of those Michiganders who want to institute racial preferences. Instead of just lobbying the admissions officials of the state’s educational institutions, they must first mount a statewide campaign to amend Michigan’s Constitution. The Supreme Court, however, has hitherto applied the political-restructuring doctrineonly against laws that change a political process in ways that diminish protection against unequal treatment, not to prevent laws granting preferential treatment.
Could there be a “political-restructuring” objection to the First Amendment? Because it proscribes “establishment of religion,” people who favor an established church cannot simply lobby Congress to create this, they first must undertake the burdensome task of amending the Constitution. So, is the First Amendment a constitutionally dubious restructuring of the nation’s political process?
Michigan, arguing for the compatibility of its constitutional amendment with the U.S. Constitution’s 14th Amendment, notes that in a 2003 case coming from the University of Michigan Law School, the court held that race-conscious admissions policies are presumed to be unconstitutional except in some narrow circumstances. Racial preferences, if carefully tailored as one component in the “individualized, holistic review of each applicant’s file” and “limited in time,” are permitted for the purpose of promoting academic “diversity.” They are not, however,required , and states are not forbidden to decide that banning preferences is proper policy.
Michigan Attorney General Bill Schuette correctly argues that the voters who passed the amendment in 80 of the state’s 83 counties were not “restructuring” the political process, they were using the process to give constitutional dignity to the valid ideal of a colorblind society.
Opponents of Michigan’s amendment can hardly argue that it was an act of racial animus. They would have to persuade the court to speculate about voters’ motivations. Furthermore, they would have to persuade the court to disallow the possibility that voters were aware of the abundant social-science evidence that questions the supposed benefits of preferences for those who are stigmatized by receiving them.
And opponents of Michigan’s amendment would have to persuade the court that it is both impossible and impermissible for a majority-white electorate to believe, without malice, that colorblind policies are best for the entire polity. Persuading the court of this would be difficult, given that the court has held that a “core purpose of the 14th Amendment was to do away with all governmentally imposed discrimination based on race.”
If racial preferences are, as proponents of them invariably insist, created for “diversity” that benefits everyone, then Michigan’s amendment banning preferences cannot constitute an invidious restructuring of the political process for the detriment of a minority. Hence opponents of Michigan’s amendment are simultaneously arguing contradictory propositions: Racial preferences serve everyone by producing diversity in academia, but banning preferences is unconstitutional because they primarily benefit a minority.
“ ‘Curiouser and curiouser!’ cried Alice,” in Lewis Carroll’s “Alice’s Adventures in Wonderland.” And so might the court’s justices cry, come Tuesday.