Racial Preferences at High Court Today

Statement of CFJ President Curt Levey on the racial preferences case before the U.S. Supreme Court today:

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Jennifer Gratz and Barbara Grutter in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the Michigan ban on racial preferences at issue in today’s case.)

In a talk to students last week, Supreme Court Justice Anthony Kennedy discussed the 1954 Brown v. Board of Education decision that outlawed racial segregation.  As reported by the Wall Street Journal, Kennedy described his reaction when that landmark ruling was handed down:

“I thought, ‘Injustice is over! No more discrimination!’” he said. Yet he then assumed his sister would have a career as either a nurse or a secretary. “The nature of injustice is you can’t see it in your own times,” Justice Kennedy said.

We hope that Justice Kennedy keeps that maxim about injustice in mind when deciding the important racial preferences case being heard by the Supreme Court today.  The case, Schuette v. Coalition to Defend Affirmative Action, is on appeal from the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities. 

Before Brown v. Board, Americans were so accustomed to segregation that many were blinded to its injustice.  Similarly today, many Americans are lulled by the pervasiveness and political correctness of affirmative action  into pretending that it does not involve discrimination. 

But make no mistake, the race-base admissions system at the University of Michigan that led to litigation and eventually a voter-approved ban involved huge, explicit preferences.  White and Asian applicants were subjected to a 20-point handicap, equivalent to the difference between an A and B average.

The Supreme Court’s liberal Justices subscribe to a theory of “benign discrimination,” in which discrimination at the University of Michigan and elsewhere is subject to less constitutional scrutiny because it favors so-called disadvantaged minorities, such as African Americans.  Putting aside the problem of lumping President Obama’s children together with inner city youth, the theory of “benign discrimination” is deeply disturbing precisely because of the truth elucidated by Justice Kennedy.  In every age, some forms of discrimination are fashionable and thus viewed as benign, blinding society to the injustice involved.  Constitutional theories that exempt popular discrimination from strict scrutiny should hardly be reassuring to those who value the Constitution’s role in protecting groups that are out of favor.

Reflecting the fashionableness of racial preferences among the nation’s intellectual elite, a majority of the Sixth Circuit stretched the law and logic to come up with a rationale for striking down Michigan’s preferences ban.  In one of the most outrageous examples of judicial activism in recent years, the Sixth Circuit claimed that the ban violates the U.S. Constitution’s Equal Protection Clause because it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  In other words, the court said that requiring equal treatment regardless of race is a violation of equal protection.

In truth, it is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of whether their state should use race in admissions.  In 2006, the ban was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an overwhelming margin.

If the Supreme Court were to adopt the Sixth Circuit’s twisted logic, racial preferences would be forced upon the people of Michigan and other states, like California, where voters have passed similar bans.  We are hopeful that, instead, Justice Kennedy and his colleagues will keep democratic principles, equal protection and common sense in mind and help the Sixth Circuit to see the injustice in its decision.