Behold the outrageous new clause of the Michigan constitution that sparked a legal battle that tumbled all the way to our Supreme Court:
The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
This new clause prohibits Michigan’s public universities from practicing racism, sexism and nationalism. What is so outrageous about that? Our nation should applaud Michigan. America isn’t a place where government should care about the color of your skin; it is a place where government should treat all citizens equally. Although at least 60% of Michigan’s voters agree, many did not.
Michigan’s ban on racial preferences has the effect of eliminating Affirmative Action, the policy of deliberately favoring admission candidates from certain racial minority groups. Advocates of Affirmative Action in Michigan filed suit against the State, claiming the amendment illegally disadvantaged minorities. The Supreme Court summarized the case as being about one thing: whether Michigan had the right to ban racism in public school admissions. Obviously, one party in the case argued that the U.S. Constitution allowed racism to be banned. The other party made the strange argument that the U.S. Constitution bars state government from prohibiting racism.
The absurdity of this legal battle can’t be understated. The pro-discrimination party in the case was the “Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary.” This coalition for “equality” was actually championing the continuation of race-based preferences in Michigan university admissions. Its position was based on the Fourteenth Amendment's clause requiring “equal protection of the laws." The heard of its argument was that some groups must be treated differently to be treated equally. On that basis, the Coalition claimed that Michigan's ban on racism in public education was forbidden by the U.S. Constitution, because it would represent unequal protection of the laws. After hearing the Coalition’s convoluted argument, Justice Scalia observed, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”
The Supreme Court arrived at a 6-2 decision in favor of Michigan’s right to ban racism in government. Justice Kennedy wrote the majority opinion, observing “[g]overnment action that classifies individuals on the basis of race… carries the danger of perpetuating the very racial divisions [those governments seek] to transcend.” The Court clearly made the right decision, yet there was still dissent from two justices that was astonishing not just in its mind-warping logic, but in its bitter divisiveness.
Justice Sonya Sotomayor wrote the dissenting opinion. She accused the majority – her fellow Justices – of following reasoning that is “out of touch with reality,” and worse. She even read her dissenting opinion aloud to underscore her feelings.
The dissent is hypocritical on multiple levels. It argues that practicing race-based discrimination in universities somehow helps to eliminate race-based discrimination in society. It also argues that racial discrimination in government hiring is abhorrent, yet racial discrimination in public education is laudable. It even argues that Michigan’s public universities have the power to prohibit racial bias individually, but not the State of Michigan, which effectively owns the schools. The dissent’s core argument is that Michigan’s prohibition on racial bias is so unfair to minorities that it violates the spirit of the Fourteenth Amendment. (Behind this opinion is the peculiar belief that minorities in this country can’t truly be treated equally unless they are given special privileges.) There is no principle in any of these arguments. It’s simply about what’s better for “me and mine.” Sotomayor has previously said that Affirmative Action “opened doors in my life”. (My Beloved World, 2014). She doesn’t seem to care who Michigan’s racial preferences hurt, only who they help – her and people like her. That isn’t the American way.
Some people have observed that universities discriminate against their students in a great many ways – on the basis of previous academic achievement, test scores, athletic ability, geographic location (in-state versus out-of-state), and even alumni connections. They ask, “why shouldn’t universities also have the authority to discriminate on the basis of race if they feel it’s an important criteria?” We aren’t talking about universities in general; we are talking about Michigan’s public universities – effective extensions of the State government that receive State funding and support. Do you want your state government discriminating on the basis of race? Michiganians don’t. We should respect that, because it’s a decent American conviction – the same conviction, by the way, that motivated the Fourteenth Amendment in the first place.
Consider this issue from a more abstract perspective. Argument A is that our whole nation is obliged to make amends with certain groups due to their mistreatment many generations ago, and we therefore have an ambiguous duty to give special privileges to those groups, although it is unclear how extensive this special treatment should be, or when it will become unnecessary. Argument B is that, although we might not be pleased with everything in our nation’s history, the best course is to treat all citizens equally, as we always should have. Which of those sounds like simpler, fairer and more sound public policy?
Yes, with principled public policy we may still see the occasional injustice. But isn’t that better than the opposite – occasional justice? That is the product of unprincipled public policy, where we make up the rules as we go. Government is no thing to improvise by following the passions of the times. That sort of government invariably harms innocent, unsuspecting people. If the cure is worse than the disease, is it really a cure at all?
The voters of Michigan have a principled argument. They took the stance that racial discrimination in government is unacceptable, period. They believe government for the people and by the people has no valid reason to consider race in any manner. That is the American position to take on the matter.
The dissent has only one argument that even touches good principal: that the Supreme Court is failing its duty to protect the minority from the majority. It is true that good government is indefatigable in protecting minorities against majorities, which can easily overstep their rightful bounds. However, even Sotomayor would surely agree that good government should be equally vigilant in blocking special interests from securing benefits from the government to the detriment of others. Affirmative Action seems to fit much more neatly in the “special interests” category than the “protect minorities” category.
Sotomayor has made it clear she believes the majority has failed to consider her perspective. Perhaps she is correct. However, she may want to demonstrate that she has also considered the majority’s principals before letting her temper flare in favor of special interests.