Will others follow Michigan in banning race preferences?


Will others follow Michigan in banning race preferences?

Apr 29, 2014 3 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Elizabeth Slattery @EHSlattery

Former Legal Fellow and Appellate Advocacy Program Manager

In a victory for equality, on April 22 the U.S. Supreme Court upheld a referendum overwhelmingly passed by Michigan voters in 2006 banning discrimination by state and local governments in education, employment and contracting.

The Michigan referendum amended the state constitution after Grutter v. Bollinger. In that 2003 decision involving the University of Michigan, the Supreme Court held that publicly-funded schools could use race and ethnicity as factors in their admissions decisions. The unfortunate result of the Grutter decision was to allow public universities to discriminate on the basis of race in favor of preferred minority students (usually blacks and Hispanics) and against other students (whites and Asians).

Racial discrimination in any form is morally repugnant. It is particularly egregious when practiced by the government. Whatever label such policies are given, be it “goals,” “priorities” or “preferences,” such policies are discriminatory and award or withhold benefits based on skin color, ethnicity or national origin.

Polls show that Americans overwhelmingly oppose race-based college admissions — and that opposition runs across all racial and political party lines. According to a June 2013 Washington Post/ABC poll, “eight in 10 whites and African Americans and almost seven in 10 Hispanics” as well as “at least two-thirds of Democrats, Republican and independents” agree that it is wrong to discriminate on the basis of race in deciding who gets into college.

That is because the majority of Americans wants to live in the type of nation that Martin Luther King, Jr., dreamed of, one “where they will not be judged by the color of their skin but by the content of their character.” Ever since the civil rights movement of the 1960s, Americans have been working hard to achieve that goal.

Michigan’s ban on racial discrimination was challenged in court as a violation of equal protection. In what can only be classified as a bizarre opinion, the Sixth Circuit Court of Appeals held that a state law mandating equal treatment violated the Equal Protection Clause of the U.S. Constitution. This week, in an opinion written by Justice Anthony Kennedy, the Supreme Court reversed the Sixth Circuit.

Five other justices, including Clinton-appointee Justice Stephen Breyer, agreed that this decision could not be taken away from the citizens of Michigan. As Justice Kennedy wrote, “Our constitutional system embraces… the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”

In a concurring opinion, Justice Antonin Scalia pointed out the truly strange nature of this lawsuit: “Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely – and only provisionally – permits?” The obvious answer was “no” (at least for six members of the Court).

The citizens of Michigan have chosen to ban unjust discrimination. Critics of this decision who claim that it will somehow engender discriminatory treatment of minorities cannot logically explain how a law that bans all forms of racial discrimination could somehow be used to discriminate against residents of Michigan of a particular race or ethnicity. Their claims make no sense and are, in fact, contrary to the state law in question, our ideals, and our constitutional mandate: that all Americans are entitled to equal treatment under the law. And they ignore recent studies that show that racial preferences in college admissions actually harm the supposed beneficiaries through a mismatch problem that leads to lower grades and higher failure rates.

Hopefully, other states will follow Michigan’s lead and pass similar referenda or legislation. The citizens of California, Washington, Nebraska, Arizona and Oklahoma have already done so. Given that efforts to eliminate such discrimination by Congress in federal programs have largely failed, state governments and particularly individual Americans should step up and act to eliminate such unjust discrimination at the state and local levels.

Racial discrimination of any kind is wrong. We should not continue to sanction such discrimination by public universities or any other government entities that award or take away benefits based on race.


 - Hans von Spakovsky is a Senior Legal Fellow and Elizabeth Slattery is a Senior Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

Originally appeared in The Detroit News