January 2013
Does the Constitution bar voters from doing away
with racial preferences? We don’t think so.
As the Supreme Court mulls whether the U.S.
Constitution prohibits state universities from taking race into account in
admissions decisions, a federal appeals court has moved in a very different
direction. It recently held that, far from forbidding affirmative action, the
Constitution prevents a state’s voters from doing away with it.
The case, decided this month by the U.S. 6th
Circuit Court of Appeals, was filed after Michigan voters approved Proposal 2,
barring state and local governments as well as public universities from giving
preferential treatment on the basis of race, sex, color, ethnicity or national
origin. That proposal had been championed by Ward Connerly, the former
University of California regent who had helped persuade voters here to approve a
similar measure, Proposition 209, in 1996.
In theory, we would be pleased to see the end of
affirmative action bans such as Proposition 209 and Proposal 2. This page
strongly opposed Proposition 209 when it was on the ballot. We continue to
believe that affirmative action is a reasonable, fair and effective way to
redress past harms and promote diversity at public universities. We hope that
the Supreme Court, which is currently hearing a different case involving
affirmative action, reaffirms its constitutionality.
But though we support affirmative action, we
also believe that voters have a right to ban it. And while we looked with favor
on a constitutional challenge to Proposition 209 in the late 1990s, we do not
agree with the 6th Circuit’s decision. It’s ingenious, but ultimately mistaken.
The decision is rooted in the 14th Amendment’s
guarantee of "equal protection of the laws." But Judge Guy Cole Jr.’s majority
opinion focused not on the fairness (or unfairness) of racial preferences in
admissions, but rather on the fact that the Michigan ballot initiative "reorders
the political process in Michigan to place special burdens on minority
interests." As a result, he said, minorities who would benefit from affirmative
action were deprived of "equal access to the tools of political change."
He offered this illustration:
"A student seeking to have her family’s alumni
connections considered in her application to one of Michigan’s esteemed public
universities could do one of four things to have the school adopt a
legacy-conscious admissions policy: she could lobby the admissions committee,
she could petition the leadership of the university, she could seek to influence
the school’s governing board, or, as a measure of last resort, she could
initiate a statewide campaign to alter the state’s constitution. The same cannot
be said for a black student seeking the adoption of a constitutionally
permissible race-conscious admissions policy. That student could do only one
thing to effect change: she could attempt to amend the Michigan Constitution — a
lengthy, expensive, and arduous process — to repeal the consequences of Proposal
2."
Cole cited two Supreme Court decisions for his
conclusion that equal protection of the laws is a guarantee that "minority
groups may meaningfully participate in the process of creating … laws and the
majority may not manipulate the channels of change so as to place unique burdens
on issues of importance to them." In 1969, the high court overturned a city
charter amendment in Akron, Ohio, that required that any ordinance prohibiting
housing discrimination be approved in a citywide referendum. In 1982, it struck
down an initiative approved by voters in Washington state that barred school
districts from busing children to distant schools for the purpose of racial
integration.
But in a dissenting opinion, Judge Julia Smith
Gibbons effectively distinguished those cases from the Michigan affirmative
action measure. For example, she noted that the charter amendment that was
overturned in Akron had made it difficult to enact laws guaranteeing "equal
treatment" in housing, not preferential treatment. A similar point was made by
the U.S. 9th Circuit Court of Appeals 15 years ago in rejecting a constitutional
challenge to Proposition 209 — a ruling that was recently reaffirmed. That court
wrote: "It is one thing to say that individuals have equal protection rights
against political obstructions to equal treatment; it is quite another to say
that individuals have equal protection rights against political obstructions to
preferential treatment."
That holding, which the conservative majority on
the Supreme Court is likely to prefer to the 6th Circuit’s reading of the
Constitution, makes legal sense. But it also places the debate about the wisdom
of racial preferences in public education where it belongs: in the political
sphere. Instead of asking courts to roll back unfavorable referendums, advocates
of affirmative action in Michigan, California and elsewhere need to make their
case to the public the way Ward Connerly and his allies made theirs. When they
do, they’ll have our support.
Los Angeles
Times, November 30, 2012.
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