October 16, 2013
By Hans A. von Spakovsky
The U.S. Supreme Court heard oral arguments on Tuesday in a case that features a party with one of the longest and most pretentious names ever to appear on the court’s docket: Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). Hopefully, the justices viewed the arguments made by BAMN and another party, Chase Cantrell, with the skepticism they deserved.
BAMN challenged a 2006 Michigan referendum that amended the state constitution to ban all “sex- and race-based preferences in public education, public employment, and public contracting,” although only the use of race in college admissions is before the Court. The referendum passed by a margin of 58 to 42 percent and is almost identical to a 1996 California referendum that has been upheld by the Ninth Circuit Court of Appeals.
That didn’t faze the Sixth Circuit, however. In one of the most bizarre rulings to come out of a federal appeals court in decades, the Sixth Circuit last year held that banning racial discrimination in the college-admissions process and requiring equal treatment violated the Equal Protection Clause of the 14th Amendment. The Sixth Circuit postulated that the referendum deprived racial minorities of equal protection under the “political-process doctrine” because it reallocated political power and the decision-making process on admissions from the Board of Regents, putting a special burden on minorities because they would have to try to overturn the amendment through the normal democratic process.
Michigan solicitor general John Bursch expertly argued the case on behalf of Michigan. He discussed the inapplicability of prior Supreme Court cases on the political-process doctrine — Washington v. Seattle School District No. 1 (1982) and Hunter v. Erickson (1969) — and pointed out the incongruity of arguing that a law that bans unequal treatment violates the ban against unequal treatment.
In what has become a common occurrence, Justice Sonia Sotomayor interrupted him almost immediately with a question. She proceeded to act as though she were the attorney for BAMN, not an associate justice of the Supreme Court. At one point, she even interrupted the attorney nominally representing BAMN, Shanta Driver, who was trying to answer a question from Justice Samuel Alito, telling Driver she was giving the wrong answer and then proceeding to answer Alito’s question. From Sotomayor’s questioning, it appeared obvious that she favors affirmative action and other forms of politically correct racial discrimination in college admissions — as long as the “wrong” people are being discriminated against and the “right” people are being discriminated for.
Meanwhile, Driver made the astounding argument that the 14th Amendment protects only racial minorities. When she said that, Justice Antonin Scalia looked like he was going to pop out of his chair. He asked her if she could name a single case where the Court had ever said such a thing, and Driver was forced to admit there wasn’t one. But that is a theory one hears from some of the most radical law professors in the country. Driver did such a terrible job arguing on behalf of BAMN that another courtroom observer later remarked to me that it was as if Michigan had gotten extra time for its arguments.
Driver and a second lawyer arguing for Chase Cantrell had difficulty answering basic questions from several justices, including Justice Alito. The crux of BAMN’s argument was the claim that taking the decision out of the hands of college administrators and putting it in the state constitution violated equal protection because of the difficulty minorities would have trying to change the constitution compared to trying to persuade college administrators to reimpose racial preferences. This argument raises the obvious question: Where do you draw the line? Who can make the decision on this issue? The faculty? The college dean? The college president? The Board of Regents of the Michigan state-college system? The state legislature? At what point does it become so “difficult” for a minority group to affect the process that the Equal Protection Clause is violated?
The justices should rule against BAMN. Its view of the 14th Amendment is completely untenable. It is time for America to banish racial discrimination entirely and make it illegal under all circumstances — as the voters of Michigan did seven years ago.
- Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation
Originally appeared in National Review Online
Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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