A Horrible Racial Preference Ruling in Michigan
On Friday, a panel from the Sixth U.S. Circuit Court of Appeals struck down Michigan's ban on affirmative action. In a split decision (Coalition to Defend Affirmative Action vs Regents of the University of Michigan), Judges R. Guy Cole, Jr. and Martha Craig Daughtrey had the presumption to overturn the wishes of a solid majority of Michigan voters who had approved the ban in a 2006 referendum ("Proposal 2"). The idea that two individuals could presume to annul the actions of a democratic majority is troubling. Far more troubling is the fact that, rather than interpret the law as established by the referendum, a federal court has decided once again to legislate from the bench.
The people of Michigan voted in 2006 to prohibit racial discrimination in publicly funded institutions. This of course prohibits affirmative action, which is a form of racial discrimination, in public institutions.
What was the basis for the court's overturning of the clear will of the people of Michigan (the referendum passed by 58 to 42 %):
In striking down the affirmation action ban, [Judge] Cole wrote that "[t]he majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities." Whatever does Judge Cole mean by "manipulating the channels of change"? Or by "places unique burdens on issues of importance to racial minorities"? Rather than plain dealing based squarely on the Constitution, Cole has resorted to language so abstruse as to be mystifying.
So on what basis does a court of appeals judge declare that "the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities"? On what basis are judges empowered to prevent the democratic majority from "manipulating the channels of change"? Isn't a public referendum a legitimate channel of change? Aren't the appeals court panel themselves "manipulating the channels of change" by imposing their view on millions of Michigan citizens, without any rational basis in law or in the Constitution?
This is not merely legal obfuscation -- it is obfuscation that seems a brazen effort to subvert the Constitution. What Judge Cole appears to be saying is that no "issue of importance" to minorities can be questioned or even discussed by the majority since any such discussion could be construed as "manipulating the channels of change."
Cole's ruling also asserts that the affirmative action ban "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." It is true that Proposal 2 "alters the political structure"; that is to say, it makes a political decision. That is what legislatures and referenda are supposed to do -- not the courts....How is it that a referendum that restores equal opportunity for all can be seen as "burdening" minorities?
Exactly. How is it that colorblindness under the law places an unfair 'burden' on minorities? Isn't legally sanctioned racial discrimination exactly what has placed a burden? Isn't it good for all to ban racial discrimination under the law?
Has Judge Cole considered that affirmative action programs that deny white and Asian applicants admission to college, hiring, and promotion at work might be "impermissibly burdening" to those individuals? How is it that a federal judge is permitted to place the interests of one racial group (his own, as it turns out) ahead of another? Nowhere in our Constitution is it stated or implied that one racial group shall be judged superior to another, no matter how poorly their ancestors were treated in the past. As the Sixth Court of Appeals panel has it, you might as well forget about getting an equal shot at being admitted to the best universities or having an outstanding career in the state of Michigan if you were born with the wrong skin color. Whites, Asians, and Jews might as well move to Texas.
In what universe is it moral or Constitutional to deny a Jewish kid or an Asian kid or a WASP kid or a black kid or any kid an opportunity in a publicly funded institution simply because of race?
I have no problem with an institution providing help to people who have individually suffered adversity. Lowering admission standards for kids from poor families or kids who have suffered objective individual harm (e.g. a kid's family was the victim of clear measurable harm caused by bigotry). But such decisions must not be based on race, for three reasons:
1) Racial discrimination is explicitly outlawed in numerous federal and state statutes.
2) The Constitution prohibits race-based laws. The 14th Amendment provides all citizens the right to "equal protection of the law". Obviously, race-based government policies do not provide equal protection; they intrinsically favor one race at the expense of another.
3) Racism of any sort is morally wrong.
That is not the way America is supposed to work. By granting preference to "minorities" as defined by the state, the Sixth Court ruling violates our nation's most cherished values of equal opportunity and fair play. The Fourteenth Amendment to the Constitution specifies that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the law." Clearly, the Michigan ban on affirmative action was intended to ensure that governmental entities within the state of Michigan conform to the equal protection clause. For the Appeals Court panel to strike down such a law on the grounds that it is unconstitutional is absolutely perverse.
In effect, what the Appeals panel has determined is that, because the ban enforces the equal protection doctrine, it is therefore unconstitutional. That, of course, is exactly the way it works in a totalitarian state in which the law is interpreted in conformity with the prevailing ideological whims of those in power.
You see in this lawless ruling the same rejection of genuine Constitutional principles that you see in the various prayer and evolution censorship rulings: the rulings are an inversion of the Constitution, which protects free speech, free exercise of religion, and equal protection of the law.
I detest racism. I detest it in all of its forms. Affirmative action, regardless of how well-intentioned, is a form of racism. I strongly believe in Martin Luther Kings timeless dream:
"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."
The time to make that dream real is now.
On Affirmative Action, Supreme Court Chief Justice John Roberts said it best in his Parents Involved ruling:
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”