The Supreme Court Agrees to Hear Michigan's Ban on Affirmative Action


The Supreme Court just agreed to rule on the 2006 Michigan Civil Rights Initiative  ­­— aka Proposal 2 ­­— the voter-approved constitutional ban on race or gender-based preferences in college admissions and government hiring.

Spearheaded by black businessman Ward Connerly, the ban sailed through by a 16-point margin ­­— despite a determined opposition that included not only neo-Trotskyite outfits such as By Any Means Necessary, universities, and

Campus Divesity

the Democratic Party but also the auto industry and even many Republicans.

However, its foes never gave up using, well, any means necessary to overturn it. Their big victory came last year when the 6th Circuit Court ruled against the initiative claiming that Michigan's ban against discrimination is itself discriminatory. The court maintained that the ban violates the 14th Amendment's guarantee of equal protection because it leaves minorities who want racial preferences in admissions no option but to mount a counter referendum. But students who want, say, their family connections or their socio-economic background considered can lobby the admissions committee or the university officials or the governing board. "The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," the court averred.

Michigan's Attorney General Bill Schuette, however, appealed this ruling that can only be described as tortured. "Entrance to our great colleges and universities must be based upon merit, and I remain optimistic moving forward in our fight for equality, fairness and rule of law at our nation's highest court," he noted.

My own feelings on Michigan's race ban are decidedly mixed. There is something odious about letting universities distribute benefits by race ­­— especially to the extent that the University of Michigan was doing before its practices were outlawed. It handed Black and Hispanic candidates 20 points just for being Black and Hispanic. By contrast, a great essay counted for only one point and a perfect SAT score, a mere 12.

That said, I'm not sure the cause of equality and merit is served by banning race preferences without simultaneously banning legacy preferences—something that the Michigan Civil Rights Initiative studiously avoided doing. As I wrote in a 2008 Reason magazine feature:

Legacy preferences are the original sin of admissions, the policy that fundamentally compromises fair, merit-based standards. Universities can't in good conscience tip the admission scales for the more privileged and then ask the less privileged to compete solely on merit. [E]liminating race while keeping legacies will make the admissions process less fair, not more fair, because it will open up minority slots to competition by whites but not vice versa.

The Supreme Court was already considering a challenge to the University of Texas' race-based admissions policies that I wrote about here. By adding the Michigan lawsuit, Schuette vs. Coalition to Defend Affirmative Action, to its docket, it is signaling a major reckoning of this issue, regardless of which way it rules.