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.