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Will high court ban racial preferences?

  • University of Michigan students hold signs as they participate in a Freeze Out rally to promote diversity at the Diag on the University of Michigan campus in Ann Arbor, Mich., on Oct. 9, 2013. After the Supreme Court ruled 10 years ago that race could be a factor in college admissions in a case from Michigan, opponents of affirmative action persuaded the state's voters to outlaw any consideration of race. Now, the high court is weighing whether the voter-approved change to Michigan's constitution in 2006 is itself discriminatory. (AP Photo/The Ann Arbor News, Melanie Maxwell)

<i>This editorial is from the Los Angeles Times</i>:

In 2006, Michigan voters banned affirmative action at the state's public universities. On Tuesday, the U.S. Supreme Court heard arguments challenging that ban. If you support affirmative action, you must hope that the court will strike it down, right?

Alas, it's not that simple. This case isn't about whether state universities may provide preferential treatment in their admissions policies. Rather, the question is whether the voters of Michigan violated the U.S. Constitution when they amended the state constitution to say that universities "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin." That is a much harder question.

We support affirmative action and opposed Proposition 209, the California ban on racial preferences on which the Michigan amendment was modeled. Racial preferences at highly selective public universities ensure a modicum of racial diversity at those institutions, and they make it possible for students from groups that historically have been victims of discrimination to move into leadership positions in society. The value of such policies is demonstrated by California's experience after the adoption of Proposition 209 in 1996. As the Los Angeles Times reported this year, African-American freshmen at UCLA dropped from 7.1 percent of the class in 1995 to 3.6 percent in 2012. At UC Berkeley, African-Americans made up 6.3 percent of freshmen in 1995 and 3.4 percent last fall.

Affirmative action policies also have passed muster at the Supreme Court. In June, in a case involving the University of Texas, the court made it clear that judges must scrutinize affirmative action programs to ensure that "no workable race-neutral alternatives would produce the educational benefits of diversity." But if a university can meet that stringent test, racial preferences are permissible.

They are not, however, constitutionally required. So how can Michigan's ban on racial preferences violate the constitution, as affirmative action proponents argue — a conclusion accepted by the U.S. 6th Circuit Court of Appeals? Can it possibly be the case that the people of the state don't have the option of banning affirmative action? The problem with the Michigan amendment, the 6th Circuit ruled, was that it "reorders the political process in Michigan" in a way that discriminates against racial minorities.

The appeals court noted that although a student seeking preference in admissions based on family connections had only to lobby university officials, an African-American student hoping to benefit from a race-conscious admissions policy would have to try to amend the state constitution, "a lengthy, expensive and arduous process."

This is an ingenious argument, and it didn't come from thin air. Twice the Supreme Court has struck down measures that made it harder for minorities to achieve their goals by placing an onerous political burden on them that doesn't apply to others.

One was an Akron, Ohio, city charter amendment requiring that fair housing legislation be approved by a referendum. The other was a Washington state referendum that prevented school busing for racial integration but allowed school districts to order it for other purposes.

But the state of Michigan argues persuasively that neither of those precedents undermines its ban on racial preferences. The Akron amendment thwarted laws designed to provide equal access, not to provide preferential treatment. And though the busing programs targeted by Washington state were designed to integrate classrooms, they did not involve racial preferences.

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