Michigan’s Proposition 2 is in front of the Supreme Court, with oral arguments having occurred last Tuesday. Prop 2 is an amendment to Michigan’s constitution which the citizens of that state very solidly approved ‘way back in 2006, with 58% voting for it. The amendment banned racial discrimination affirmative action in public education and in state employment and contracting.
Why is this even a question for the Supremes? Because the 6th Circuit Court struck down the people’s voice on the odd pseudo-logic that banning racial preference was somehow harmful to minorities. It would, as The Wall Street Journal put it, “bar a black student from seeking preferential admission to the University of Michigan while allowing applicants with alumni connections or other attributes to try to gain an edge.”
The 6th‘s argument is curious especially because the Michigan citizens’ amendment doesn’t discriminate on the basis of race; it bans exactly that. Minorities can, for instance, go on about seeking special preferences based on family—just as anyone can at nearly any college or university in the country. Minorities can go on about seeking special preferences for funding for sickle-cell anemia, which particularly afflicts blacks (oh, wait, there’s that disparate impact thing) or on and on. No one can seek special preferences on the basis of race, though.
Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary attorney, George B Washington, says with no trace of irony,
We don’t believe in the colorblind Constitution. We’re making what we think is a straightforward defense of the rights of black and Latino young people” to seek admissions preferences from university officials….
It doesn’t get any starker than this: eliminating discrimination on the basis of race is to discriminate on the basis of race because discrimination on the basis of race is a race right.
What should be a slam dunk in the Supreme Court, though, isn’t. Justice Ruth Bader Ginsburg said the 14th Amendment had been applied to protect politically weak “minorities against hostile, disadvantageous legislation” imposed by the majority. True enough: the 14th demands “equal protection of the laws” for all, regardless of race (or any other non-meritorious characteristic). By banning racial preferences, the citizens of Michigan did exactly than, and so those good citizens protected Michigan’s politically weak “minorities against hostile, disadvantageous legislation.” Ginsburg chooses not to see that, however.
Additionally, Justice Sonia Sotomayor had this:
It’s always wonderful for minorities that they finally get in, they finally have children, and now you’re going to do away [with] that preference for them. It seems that the game post keeps changing every few years for minorities.
No. The problem is the constant insistence on racial preference—on judgment not by the content of a man’s character, but by the color of his skin. The so far denied change is to eliminate that pernicious discrimination.
Finally, many have argued that Prop 2 actually has hurt minorities: their enrollment in Michigan’s colleges and universities, has fallen since the amendment was adopted. A look at actual facts presents a different picture, though. The graph below, from the University of Michigan and The Wall Street Journal, illustrates.
Plainly, there has been no effect at all on one minority group (which has been carefully ignored throughout the pro-affirmative action types—no discrimination here, though). Americans of Asian descent has been constant since 2000, six years before passage of the amendment.
Black enrollment has fallen off. But that downward trend was well established long before passage; their enrollment has been dropping steadily since 2001. Since passage, the drop-off has continued, unchanged.
Hispanic enrollment paints a somewhat different picture. This group’s enrollment has been flat since passage, halting a slight downward trend from a 2002 peak.
At worst, the citizens’ amendment has had no effect on minority enrollment.
Again, I ask: why is this even a question for the Supremes? Except that it’s necessary in order to reverse a racially ignorant ruling by the 6th.