Banning racial discrimination is unconstitutional?

Last Thursday, the 6th U.S. Circuit Court of Appeals ruled eight to seven that Michigan’s constitutional amendment that bans the government from granting preferences to or discriminating against individuals or groups on the basis of race, sex, color, ethnicity, or national origin in employment, education, and contracting, was unconstitutional. The measure had passed in 2006 with 58 percent of the vote.

The court contended that the law placed a special burden on those who favor a government that treats individuals differently based on the color of their skin in college admissions. Legacy admissions supporters can lobby admissions committees, for example. But the constitutional amendment “entrenched the ban on all race-conscious admissions policies at the highest level,” and the only recourse for supporters is a long and expensive campaign to amend the constitution. The court called this a “comparative structural burden” that “undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

In other words, banning racial discrimination is unconstitutional.

Why, you might ask, are tax-supported schools allowed to consider race in admissions in 2012? The U.S. Supreme Court ruled in Grutter v. Bollinger (2003) that schools could consider race as a “plus” factor. When I blogged for the American Civil Rights Institute, the organization behind campaigns in several states to end preferences, I got to know and admire Jennifer Gratz, who started the Michigan campaign, which she describes as brutal.

In the mid-1990s, the University of Michigan rejected Gratz’s application, and she filed a racial discrimination lawsuit. In Gratz v. Bollinger, the high court struck down the undergraduate school’s points-for-race admissions policy. Gratz continued to battle against racial preferences with the Michigan Civil Rights Initiative (MCRI), which faced enormous opposition. “[O]pponents outspent MCRI supporters by a margin of 5:1,” she wrote. Despite the odds, the campaign continued, and the voters decided.

“[A]ny citizen in Michigan can initiate a constitutional amendment,” Gratz pointed out. “I was 24 when I started the MCRI. I did not have a background in politics. We did not have institutional support. … Surely, Judge [R. Guy] Cole [Jr., who wrote the majority opinion for the 6th Circuit] knows that MCRI’s opponents have the money and manpower to mount their own ballot initiative.”

If Gratz can start a campaign to amend the state constitution in the face of such resistance, why is it suddenly a violation of the Equal Protection Clause for minorities to do the same? Why is the standard lower for racial minorities? Then again, that’s what racial preferences are all about. One group is held to a lower standard based on race.

“The court’s disregard for the Constitution should upset us all—regardless of one’s opinion on affirmative action,” Gratz wrote. But there is hope. The Supreme Court will hear arguments in Fisher v. University of Texas, in which Abigail Fisher alleged that her application was rejected on account of race. It’s a shame we’re still fighting racial discrimination in government after all these years.