Racial Preferences Could Backfire On Minorities

Why the Supreme Court shouldn't overturn Michigan's Prop 2

For the second time in a decade, Michigan's racial preferences saga has reached the Supreme Court. The court will hear arguments today to settle the fate of Proposal 2, the 2006 ballot initiative that banned preferential treatment for minorities in Michigan colleges.

But the logic that Prop. 2 -- aka the Michigan Civil Rights Initiative -- opponents are deploying is too clever by half and could backfire on minorities.

The Supreme Court ruled in Grutter v. Bollinger, a 2003 case challenging University of Michigan's race-conscious admissions policies, that such policies were constitutionally permissible when deployed narrowly not to promote social justice but campus diversity. Diversity produced general educational benefits — and inequality in the service of equal benefits for everyone was permissible.

But nothing in the court's ruling suggested that because racial preferences are permitted by the Constitution that states can't ban them.

Hence, in 2006, Michigan voters, 58%-42%, passed Prop. 2 prohibiting their government from "discriminat(ing) against, or grant(ing) preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin." This language mimicked the 14th Amendment's Equal Protection Clause and the 1964 Civil Rights Act.

Last November, however, the 6th Circuit Court ruled that this ban on discrimination was itself discriminatory. Why? Essentially, because it would require minorities who want preferential treatment to amend the Constitution. However, other groups — veterans, parents, firefighters — need only go through normal legislative channels to promote their interests. This "political restructuring" supposedly burdens the democratic rights of minorities and violates the 14th Amendment.

It's an interesting argument, but wrong. As University of San Diego law professor Gail Heriot notes, Prop. 2 doesn't discriminate against racial minorities but against racial discrimination. It doesn't just bar blacks from seeking special preferences in college admissions but whites, too. Each can, however, petition for, say, greater funding for sickle-cell anemia (which particularly afflicts blacks) or skin cancer (which disproportionately affects whites).

In other words, every racial group is equally encumbered when promoting racial privileges and equally unencumbered when promoting non-racial interests. This comports with our ordinary moral intuition that skin color shouldn't be the basis of any advantage or disadvantage. It also better protects minorities because their numerical weakness makes them much more susceptible to losing out, in the long run, when privileges are determined by raw racial politicking. After all, elite universities have used racial quotas in the past to keep Jews out.

But there are other reasons for the Supreme Court to reject the 6th Circuit’s zany ruling. California passed Proposition 209 in 1996 with nearly identical language, and it survived nearly identical lawsuits. Likewise, voters in Louisiana (1973), Washington (1998), Nebraska (2008), Arizona (2010) and Oklahoma (2012) have approved initiatives prohibiting race-based discrimination.

Upholding the 6th Circuit would upset all these bans. Basically, the Supreme Court would be telling state voters that they have no right to craft their own affirmative action policies to fulfill the Constitution’s commitment to equal protection, a remarkable usurpation of local control.

It is unlikely it would do so. And Michigan voters, both minorities and others, would be better off if it didn't.

This column originally appeared in USA Today.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Alice Bowie||

    "As University of San Diego law professor Gail Heriot notes, Prop. 2 doesn't discriminate against racial minorities but against racial discrimination. It doesn't just bar blacks from seeking special preferences in college admissions but whites, too. "

    I'm all for a 100% merit based system then.
    Colleges can only admit students in by entrance exam. They won't even know the name, sex, race, etc. of the student. Just the SSN and their grade.

    Or, have no policy and just let colleges do what they want.

  • Alice Bowie||

    The reason discrimination laws came to be is because employers, doctors, service providers, businesses, schools, universities, police departments, etc. were discriminating against minorities.

    In fact, immigrants were welcomed into Elis Island from Europe. The concept of "Illegal Aliens" didn't exist until large number of non-Europeans started to come to America.

    I guess things are different now. Perhaps in places like NYC we can get rid of these discrimination laws. But the rest of the country, especially the red south, Arizona, and those places, forget it. The minorities should reconsider the place (I as a Hispanic would not live there and subject my children to be around those people).

  • Doctor Whom||

    Actually, before civil-rights acts, government at all levels had passed laws either removing market disincentives to discriminate or outright forcing the private sector to discriminate. I took employment-discrimination law at a lefty law school, and even there, we covered this.

  • BardMetal||

    "In fact, immigrants were welcomed into Elis Island from Europe. The concept of "Illegal Aliens" didn't exist until large number of non-Europeans started to come to America."

    Really? I wasn't aware that the Irish were so warmly received when they arrived here during the potato famine.

    And doesn't the racial slur WOP mean "with out papers" which was an insult to Italians who came here illegally?

    And let's not forget how unpopular it was to have a German sounding last name during the first world war. There is a reason a lot of Von Brauns changed their names to Brown.

    Maybe you should save your ridiculous racial narratives for someone dumb enough to believe it.

  • Loki||

    There you go, bringing up actual historic facts into the conversation. Didn't you know that facts are racist?

  • Calidissident||

    "And doesn't the racial slur WOP mean "with out papers" which was an insult to Italians who came here illegally?"

    This is actually a common misconception. The origin of the word is the Italian word "Guappo" (from the Spanish word "guapo"), which means "swagger, ruffian, or pimip." Italians from Campania used it to refer to others, and eventually non-Italians started using "wop" as a slur to refer to all Italians. There wasn't any need for "papers" in the modern sense during the era when most Italians came here.

    Early immigration laws were very often racially motivated, and although they were not limited to excluding non-white groups, non-whites (usually Asians, as Hispanic immigration was pretty low, and African immigration virtually nonexistent at that time) generally got it worse. The Chinese Exclusion Act banned Chinese immigration in 1882 and the Immigration Act of 1917 expanded the exclusion zone to other Asian countries. The 1924 Act further prohibited immigration from East Asia, as well as South Asia and the Middle East, although it was also the first act to significantly limit immigration from Europe (mostly Southern and Eastern Europe, which was the main attempt of the law). Naturalization law was also discriminatory against non-whites until the mid 1900s. I'm not saying Alice's post was in any way completely correct, and many European groups did face discrimination and prejudice, but not on the same level that non-white immigrant groups did.

  • Randian filtered me, I WIN!||

    "This is actually a common misconception. The origin of the word is the Italian word "Guappo" (from the Spanish word "guapo"), which means "swagger, ruffian, or pimip." Italians from Campania used it to refer to others, and eventually non-Italians started using "wop" as a slur to refer to all Italians. There wasn't any need for "papers" in the modern sense during the era when most Italians came here."

    I love how your totally unsupported opinion of the origin is somehow more factual than his.

    Neither of you have any idea of the difinitive origin, and you always sound likie stupid assholes claiming you do.

  • ||

    I like how you think simply CLAIMING his opinion to be unsupported actually MAKES it unsupported. Cali's claims do have some support, and somewhat more than the "papers" explanation.

    If you're interested in who's REALLY being a "stupid asshole" here, I'll give you two hints: there's only one of them in this conversation, and you in particular can discover who it is simply be looking in a mirror.

  • Calidissident||

    The difference is the theory I presented actually has significant evidence backing it up. There is literally zero evidence to support the notion that it stands for "Without papers" which wouldn't even make sense, because the term "wop" was first used in 1908, and in those days immigrants didn't need to have papers.

  • mtrueman||

    When discussing these issues, it's impossible to avoid ridiculous racial narratives. These hated Italians and Irish you speak of were not deemed to be of the white race until late in the game. The largest lynching incident in US history was directed against a group of Italian immigrants. (11 Italians in 1891) The Irish were popularly thought to be more African than European. You want to discuss race in America? You won't get far before you hit ridiculous and hateful narratives.

  • Flingbot||

    I thought it was WOP because that's the sound they make when they fall off of the scaffolding. Or have I been misled?

  • Loki||

    Just what, exactly, do you mean by "those people?"

  • Doctor Whom||

    Under progressive standards of diversity, inclusiveness, and tolerance, certain targets are acceptable.

  • Number 2||

    Sure. Southern and Eastern Europeans were welcomed with open arms. When Woodrow Wilson and Theodore Roosevelt referred to them as monkeys and animals, and deemed them to be inferior races to the Anglo Saxons, those were acts of love and respect. And the first immigration laws were passed in the 1920s specifically to cut off Southern and Eastern European immigration.

  • Free Society||

    But the rest of the country, especially the red south, Arizona, and those places, forget it. The minorities should reconsider the place (I as a Hispanic would not live there and subject my children to be around those people).

    The Northeast and Left Coast are far more bigoted on racial issues than those WASPy southern states you loathe. Conventional wisdom is a bitch isn't it?

  • Michael Ejercito||

    Which states actually banned blacks, period?

  • DarrenM||

    "[R]ace prejudice seems stronger in those states that have abolished slavery than in those where it still exists, and nowhere is it more intolerant than in those states where slavery was never known." --Alexis De Tocqueville, “Democracy in America”

  • Res ipsa loquitur||

    Few things start my day off better than watching a fail progressive argument get torn apart. Thanks all !

  • mtrueman||

    "The Northeast and Left Coast are far more bigoted on racial issues"

    What surprised me was learning that the battle song of Texas, almost its national anthem, was a hymn to inter-racial sex, The Yellow Rose of Texas, about a man's devotion to a light skinned negress. What northern or eastern state can claim anything like this?

  • OneOut||

    The "man" you are referring to was the Mexican General Santa Anna. Supposedly he was taking an afternoon siesta with The Yellow Rose" when the Texicans attacked the Mexican Army at The Battle of San Jacinto. San Jacinto was the deciding battle in the Texican's revolution against Mexico.

  • Killazontherun||

    I usually avoid reading the fool but the ignorance just drips off the screen with that one. When proggies start talking about areas of America they have little experience with it really does sound like a virgin trying to describe having sex.

  • MJGreen||

    But the rest of the country, especially the red south, Arizona, and those places, forget it. The minorities should reconsider the place (I as a Hispanic would not live there and subject my children to be around those people).

    Stupid minorities, can't even figure out where to live.

  • Jquip||

    When your argument relies on clobbering Animal Farm for "Some races are more equal than others" then you've confessed to your own racial bigotry. Or the necessity that others be racial bigots.

    Not saying it's right or wrong. But get your groove on and embrace your inner Hispanitler openly.

  • blcartwright||

    but wait, didn't the immigrants come to Ellis Island in order to get their papers? And yes, there have been racially motivated immigration laws, but that proves that immigration laws actually existed.

    Those who came to Ellis Island (and other similar facilities) where choosing to submit themselves to the immigration laws existing at the time. Those who did not were in the country illegally.

  • kevrob||

    Ellis Island didn't become NYC's immigration intake point until 1892. Post Famine-era Irish debarked @ Castle Garden from 1855-1890.

    http://en.wikipedia.org/wiki/Castle_Garden

    Before that, they could just step off the gangplank at the wharves.

    Heavy Italian immigration started in 1876, so Castle Garden would have been their destination, too.

    http://library.thinkquest.org/20619/Italian.html

    Kevin

  • nomoss||

    Nor would "those people" want to live around an arrogant raging hate-mongering bigot like yourself, Alice.

  • Michael Ejercito||

    Private colleges can have all the affirmative action they want.

    Public colleges have to follow this little thing called equal protection.

  • Free Society||

    Colleges should be able to discriminate for any reason, except for state-funded schools, which shouldn't have a right to exist at all. Equality means equality, not privileges.

  • Alice Bowie||

    In NJ, Rutgers ($16kyr) is 1000% better than FDU ($50kyr).

    What's wrong with stated funded schools? Besides the typical libertarian complaint that nothing should be state-funded?

  • z80kid||

    What's wrong with stated funded schools? Besides the typical
    libertarian complaint that nothing should be state-funded?

    So you're saying "What's wrong with state schools, aside from what's wrong with state schools?"

    Taking from the whole population to spend on a small segment of the population is immoral.

  • wareagle||

    education is part of every state's constitution and state-run universities go way back. Mine was established in the 1850s, long before anyone was complaining about proggies or about govt over-reach.

  • Butler||

    I'm not sure how that establishes that taking money from everyone to pay for the post-secondary education of a few is wrong . . . and that's aside from it being an inefficient/ineffective way of training/educating a diverse and productive workforce.

  • wareagle||

    just saying that, at the time, no one looked at it as folks here are today, and this was a period where small govt was far more the norm than it is now. In addition, I suspect education then was much more about preparing people for the professional ranks in useful jobs than in indoctrination and pointless degrees.

  • Free Society||

    education is part of every state's constitution and state-run universities go way back. Mine was established in the 1850s, long before anyone was complaining about proggies or about govt over-reach.


    Appeal to tradition much?

  • kevrob||

    Here's the answer:

    Schooling, like churches and the press, forms the mind of the citizenry. As such, in a free society, those institutions ought not be in the hands of the state, which /m/i/g/h/t/ has turned them to indoctrination of the public. There is also Jefferson's* admonition regarding mandatory tithes:
    That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical;... -
    Virginia Statute for Religious Freedom

    I happen to think that applies equally well to the teaching of history, social studies and civics as it does religion.

    In a free society, there would be a vast array of schooling providers, some of whom would purvey indoctriation, but it wouldn't be a monolithic Blob, and the efforts of one might cancel out those of another.

    Kevin

    *Yes, I know TJ fell down on this and supported gubmint edumacation and founded the U of VA. He was the Sphinx, and everyone all over the political map can find something to love or loathe in his oeuvre.

  • heart_of_flint||

    "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."

    People were complaining about government overreach at least as far back as 1776.

  • Cliché Bandit||

    1215?

  • pmains||

    1215? Bah. By the 9th century, Alfred the Great was massively expanding the reach of government. Now, Aethelbehrt -- there was a king who understood the proper limits of government.

  • Cliché Bandit||

    ROADZ!!!!

    He did this by extending the special jurisdiction which the king had always exercised over his own household to cover the old Roman highways and eventually the entire kingdom.
  • pmains||

    Exactly. Had we libertarians nipped that ROADZ problem in the bud to begin with, we wouldn't be where we are today.

  • Michael Ejercito||



    Taking from the whole population to spend on a small segment of the population is immoral.


    Can you quote someone from the Reformation, Enlightenment, American Revolution, or American Civil War even hinting so?

  • Mizchief||

    It's only really taking from the many and giving to the few when those "few" are arbitrarily limited. When those resources are given based on merit and not race or other factors beyond the control of the applicant. With our tax system where the bottom half of the income-earners pays no taxes and, the very bottom makes more in tax credits than they every paid in, only those who either got a college education or has many graduates in their employ are paying for those programs anyway.

  • Butler||

    This ignores the fact that schools are largely funded by property taxes in most states. Everyone with a home pays property tax, and you even pay it indirectly when you purchase goods from businesses who pay property tax.

    But, I digress. Even if it were the case that this is generally paid for by those who use it, it's still wrong. The Government shoudn't take money from people and give it back only as a credit for approved behavior (attending college). In addition to pushing more people to college than actually belong there, drivinig up the costs, and encouraging worthless degrees, it's just plain wrong.

  • Loki||

    Besides the typical libertarian complaint that nothing should be state-funded?

    BLAM!!! DOWN GOES THE STRAWMAN!!!! DOWN GOES THE STRAWMAN!!!!!

  • OldMexican||

    Re: Alice Bowie,

    Besides the typical libertarian complaint that nothing should be state-funded?


    It's not a complaint, it's a prescription to a problem: Statism.

  • Free Society||

    We don't even need to bring up the harm done by subsidies, price fixing, cartels and unfair competition to defeat the pro-state funded school arguments.

  • Lady Bertrum||

    On campus, in-state tuition at Rutgers is more like 26-28k and significantly less financial aid is available at state schools compared to private.

    Many Jersey residents attend out of state schools because Jersey state schools are such a poor bargain. UofRI, DE, and UNC are common destinations for Jersey residents. the single largest out of state population at UNC is from Jersey.

  • Lady Bertrum||

    FDU's tuition is 34K off campus. There are other things to consider like crime rates, and quality of life. FDU is located in an affluent, low crime, high-end area. The campus is safe and beautiful. The Rutger's campus is one step up from a shithole. And this is true of most Jersey state schools. They're mostly located in shit areas.

    Degrees and majors matter, too. AA B.A in communications from either institution is worthless.

  • ||

    The Rutger's campus is one step up from a shithole. And this is true of most Jersey state schools. They're mostly located in shit areas.

    They're located in New Jersey, so "shit areas" is redundant.

  • wareagle||

    there is also the practical backfiring - human nature. How many whites look at non-white hires and ask if the person was hired on merit or color? How many non-whites ask that of themselves? The system serves no one particularly well.

  • Michael Ejercito||

    How do we apply the Sixth Circuit's reasoning to laws that ban racial segregation by the government?

    It is important to remember that Brown v. Board of Education, 347 U.S. 483 (1954), did not sweep away racial segregation nationwide. Brown only overruled Plessy v. Ferguson, 163 U.S. 537 (1896) to the extent it applied to public education. 347 U.S. at 495. Under current Supreme Court precedent, the 14th Amendment permits the state to racially segregate other facilities like parks and rail cars. Any lower court hearing such a challenge must follow Plessy, because the Supreme Court never struck down racial segregation as a violation of the 1r4th Amendment outside the public education context.

    Thus, if a state banned racially segregated streetcars in local public transportation, it would require segregationists to appeal to at least the legislature (if not the state's constitutional amendment process), instead of the local government to obtain their preference for racially segregated streetcars. And under the Sixth Circuit's reasoning, this restructures the political process to disfavor segregationists from obtaining a racial preference still permitted by the 14th Amendment. (Again, Brown is only applicable to pubnlic education.) And as such, a state banning especially segregated street cars in local public transportation violates equal protection under sixth Circuit precedent.

  • ||

    Holy fuck. You seriously never heard about the Civil Rights Act of 1964?

  • Michael Ejercito||

    I have. Assuming arguendo that it prohibits all racial segregation by state and local governments, it restructures the political process to forbid a race-based preference (segregation) that is expressly permitted by Supreme Court precedent, as long as the separated facilities are equal, see Plessy, supra, and are not public education facilities. See Brown, supra. Segregationists thus must appeal to Congress, rather than their state or local government, to have racially segregated public facilities. Thus, under the Sixth Circuit's ruling, the Civil Rights Act violates equal protection, at least to the extent it prevents the state and local government from racially segregating public facilities aside from public schools.

  • Brian||

    Essentially, because it would require minorities who want preferential treatment to amend the Constitution. However, other groups — veterans, parents, firefighters — need only go through normal legislative channels to promote their interests. This "political restructuring" supposedly burdens the democratic rights of minorities and violates the 14th Amendment.

    Wow, now we define "fairness" as accessibility to special treatment by the government. How Orwellian.

  • ||

    This also nicely summarizes our debates on marriage in this country. Having kicked up that shitpile, I'm now gonna grab me coat...

  • Mizchief||

    There are likely the same people who push for majority rule over limited government with strict rules as to what the federal government can and can't do. Those who think congress can pass whatever laws they want assuming they have voting support.

    Those who find themselves in any sort of minority group defined by race or any other classification should be very weary of this type of legislation.

  • williamdgarcia||

    until I looked at the draft which had said $6201, I did not believe that my sister woz trully earning money in there spare time at there labtop.. there uncles cousin haz done this 4 only 12 months and just repayed the morgage on there house and bought a brand new Mini Cooper. about his /.......... www.BAM21.CoM

  • Eric Bana||

    Comparing "public" and "private" universities in the U.S. is rather silly given the ubiquity of federally provided student loans that have helped to create an enormously inefficient, failing system.

    Nearly half of college students don't graduate within SIX years. And the student loan debt that many graduates and non-graduates have is way higher than it has to be. With technology, a complete revolution could happen with post-secondary school education. Putting all your eggs into one basket with a 4-5-6 year bachelor's degree at a university isn't the soundest of ideas. There could be a system where people get series of different certificates coupled with internships/apprenticeships to combine flexible education with actual work experience. Post-secondary school learning could be something totally different if the government weren't feeding the beast of the four-year universities as they are.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement