Michigan Voters Ban Discrimination

“What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us.” — Frederick Douglass as quoted by Justice Clarence Thomas in his dissent of Grutter v. Bollinger.

The legacy of Supreme Court justices live long after they retire or otherwise leave the Court. In 2003, Justice Sandra Day O’Connor wrote the opinion for and provided the decisive vote in Grutter v. Bollinger. Despite the plain words of the 14th Amendment to the US Constitution and subsequent civil rights legislation, the Court ruled that the use of race, as one of many criteria, for use in admissions decisions for the University of Michigan Law School is constitutional. However, given the pernicious nature of such use, they suggested that perhaps it could only be used for 25 years. We hope that that will end the legacy of this particular O’Connor decision.

Make no mistake about it. The decision was purely ad hoc, conjured in support of a policy not legal position of a majority of the Court. Race was not a minor issue in admissions decisions. If race were not in many cases dispositive, neither side of the case would have perused the issue all the way to the Supreme Court.

Now the people have spoken. In between the dark storm clouds that darkened the last the mid-term election, Michigan voters shown a bright ray of sunlight. Rejecting desperate pleas from virtually the entire Michigan political establishment, both Democratic and Republican, the voters displayed uncommon sense and courage and overwhelmingly passed Proposition 2, the Michigan Civil Right Initiative (MCRI), 58 percent to 42 percent. The MCRI banned “public institutions from using affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.” It is interesting that the proposition had to be worded specifically to ban preferential treatment. Previously courts had twisted the words “equal protection” to allow for preferential treatment, so demanding equal treatment would not have been sufficient.

Now the University of Michigan is again seeking to obtain court permission to continue their racial spoils systems in defiance of the will of a large majority of Michigan voters. The day after the voters of Michigan made their decision, the University of Michigan filed suit. The university is claiming that the proposition is violating their First Amendment rights to express the views on the importance of diversity. Surely the university itself cannot believe what they are arguing. By their argument racist whites could claim that the First Amendment protects mean-spirited racial discrimination.

Moreover, law schools were recently embarrassed in making the same argument before the US Supreme Court. In Rumsfeld v. Forum for Academic and Institutional Rights, a consortium of laws schools challenged the Solomon Amendment. The Solomon Amendment required institutions that receive federal funding to allow military recruiters the same access to students as any other recruiter. Before the Supreme Court, the law schools argued that the Solomon Amendment violated their First Amendment free speech rights to oppose the military’s “don’t ask don’t tell” policy. The Supreme Court unanimously rejected this argument. They would like to the same in this case should it make it up to the Supreme Court, especially a Court without Justice O’Connor.

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