In the Orwellian maze racial preferences have made of American universities, non-discrimination is discrimination. Insisting that everyone be treated equally is a violation of the Equal Protection Clause. Special treatment by race is wrong, and that’s why we absolutely must have more of it.
A landmark ruling – and not a close one, either – at the Supreme Court today might spell the beginning of the end for the racial spoils system. At the very least, it has been ruled permissible for the self-governing citizens of the United States to end it. Fox News reports:
The Supreme Court has upheld Michigan’s affirmative action ban, ruling that the state has the right to determine whether racial preferences can be considered in college admissions.
In a 6-2 ruling on Tuesday, the justices said that a lower federal court was wrong to set aside the change as discriminatory. The Supreme Court ruled that Michigan voters had the right to change their state constitution to bar public colleges and universities from using race as a factor in admissions.
Justice Anthony Kennedy, writing for the majority, suggested that right extends even beyond college policies.
“There is no authority in the federal constitution or in the [courts’] precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions,” he wrote.
Kennedy said voters chose to eliminate racial preferences because they deemed them unwise.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it,” Kennedy said.
Not according to Justice Sotomayor, who evidently doesn’t think anyone should be able to resolve it, ever. Her dissent is either an epic masterpiece of scathing criticism or a rambling temper tantrum, depending on whether the reviewer supports affirmative action policies:
In dissent, Justice Sonia Sotomayor said the decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom Tuesday. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.
At 58 pages, Sotomayor’s dissent was longer than the combined length of the four opinions in support of the outcome.
It’s a 6-2 decision because former Solicitor General Elena Kagan recused herself. Maybe it’s not such a great idea to send someone with so many conflicts of interest from recent Administration service to the Supreme Court. This seems like the sort of decision where one would want all nine justices to weigh in.
Writing at the Washington Post’s Volokh Conspiracy blog, Jonathan Adler has a breakdown of how the concurring justices justified their opinions:
Six justices voted to uphold the constitutionality of Michigan???s ballot initiative, albeit on different grounds. Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, concluded that the Constitution does not preclude states from deciding whether to allow racial preferences through a ballot initiative. Justice Antonin Scalia, joined by Justice Clarence Thomas, went further, suggesting that the cases upon which the U.S. Court of Appeals for the Sixth Circuit had relied should be overruled. Justice Stephen Breyer joined the result, but only insofar as it applied to the use of racial preferences to increase diversity in educational institutions.
There are basically two levels of argument here: an issue of state’s rights, and the larger question about whether race-based admissions policies are a good idea or not. The concurring justices came together on the former point, but Scalia and Thomas wanted to go further. Upholding the Sixth Circuit Court of Appeals ruling, which held that requiring equal treatment was a violation of the Equal Protection Clause, would have endorsed Justice Sotomayor’s argument that the people of individual states, and their representative governments, cannot be trusted to treat people equally; i.e. state governments are presumably vulnerable to capture by racists.
I have yet to hear anyone make a compelling case that Klansmen are running the Michigan university system. The argument for racial preferences boils down to utilitarian observations about how many black students are enrolled at universities, without any effort made to demonstrate that their low enrollment is a result of sinister racial discrimination. In other words, the people of the United States are once again held guilty of “crimes” without formal accusation, evidence, or trial, and subjected to exercises of compulsive force without any demonstration of foul play or ill intent. That’s been happening a lot lately.
For example, Mlive quotes some local criticism of the affirmative action ban:
University of Michigan President Mary Sue Coleman and admissions director Ted Spencer have decried the affirmative action ban, saying outright that the school cannot achieve a fully diverse student body with it in place.
“It’s impossible,” Spencer said in a recent interview, “to achieve diversity on a regular basis if race cannot be used as one of many factors.”
Fifty-eight percent of Michigan voters in 2006 passed Proposal 2, a ballot initiative that amended the state constitution and made it illegal for state entities to consider race in admissions and hiring. With the Supreme Court’s ruling, the only way left to nullify Proposal 2 is to mount a long, expensive and uncertain campaign to overturn it.
Why would it be “impossible to achieve diversity” without unfairly discriminating against some people and privileging others, based on their skin color, if there is no deliberate effort being made to keep minority students away? Why not expect opponents of the affirmative-action ban to “mount a long, expensive, and uncertain campaign to overturn it?” That’s how representative government works. We’re not meant to beat each other into line with rolled-up court decisions.
Even Justice Sotomayor’s dissenting opinion conceded that “the Constitution does not protect racial minorities from political defeat,” so it sounds like she has no problem with long, expensive, and uncertain political campaigns, provided they are conducted fairly.
She also said the Constitution does not “give the majority free rein to erect selective barriers against racial minorities.” Does anyone have any solid evidence that the people of Michigan have been doing that? Were there any “selective barriers against racial minorities,” other than black people, included in the old affirmative action regime? Why should a well-meaning, law-abiding student face officially-sanctioned discrimination merely because her skin happens to be white? That sort of thing has been going on for fifty years now. Do affirmative-action supporters have a timetable for when it might be possible to give it a rest? Fifty more years? A hundred? And if American citizens don’t get to make that decision for themselves, through the electoral process, then who does?