After the U.S. 6th Circuit Court of Appeals found Michigan’s affirmative action ban unconstitutional, both the Detroit Free Press and Detroit News responded with dishonest editorials opposing the ruling that failed to address the grounds for the court’s decision.
In 2006, Michigan voters, by a 58 to 42 percent margin, approved Proposal 2, the Michigan Civil Rights Initiative, which prohibits public universities and other public institutions from giving preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in such areas as college admissions, and public employment and contracting.
The Coalition to Defend Affirmative Action, which includes the ACLU and NAACP, and is supported by such business leaders as the Detroit Regional Chamber of Commerce, DTE Energy and Steelcase, filed a lawsuit challenging the constitutionality of Proposal 2’s affirmative action ban on college admissions.
Judge David Lawson of the U.S. District Court for the Eastern District of Michigan upheld the law. But last year, as I described in A good decision on a bad law, a three-judge panel from the 6th Circuit ruled that Proposal 2 violated the Equal Protection Clause of the 14th Amendment in a 2-1 decision. Michigan Attorney General Bill Schuette then appealed the ruling to the full 6th Circuit, which upheld the three-judge panel in an 8-7 decision.
As with the three-judge panel, the heart of the full 6th Circuit decision is that university admission policies can consider such nonacademic factors as geographical diversity, athletics, and whether a prospective student is the child of alumni. While a university can be lobbied to maintain, alter or end these preferences, amending the state constitution to single out affirmative action impermissibly burdened racial minorities, creating two very different processes to seek or oppose two types of admission preferences.
In his majority opinion, Judge R. Guy Cole wrote, “A black student seeking the adoption of a constitutionally permissible race-conscious admissions policy … could do only one thing to effect change: She could attempt to amend the Michigan Constitution — a lengthy, expensive and arduous process — to repeal the consequences” of the ban.
“On the other hand, a student could do several other things to persuade a college to alter its admissions policy to favor applicants’ alumni connections, including lobbying the admissions committee or petitioning the university’s leaders,” Cole wrote.
“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,” said Cole.
In announcing that he will appeal the ruling to the U.S. Supreme Court, Schuette said, “Proposal 2 embodies the fundamental premise of what America is all about: equal opportunity under the law. Entrance to our great universities must be based upon merit.” This statement was dishonest, for what merit is there in having a parent who attended the university?
Similarly, the News editorial was dishonest when it made no mention of nonacademic factors other than race being used for college admissions.
The Free Press, which editorially opposed Proposal 2 and still considers it a bad law, was also dishonest in not mentioning the other nonacademic admissions factors in its editorial.
Instead, the editorial went off on a disgusting tangent over a side issue finding by the 6th Circuit that minority interests can never be protected by the popular vote, which it called “an unwise extension of judicial power,” going on to say, “We have never challenged the Michigan electorate’s authority to adopt such a policy.”
Of course, under a court’s power of judicial review, the constitutionality of any law is decided based on its substance, not on whether it was approved by the voters, a state legislature or Congress.
Diversity is an important consideration, for we are better served as a state and nation when students are able to learn in diverse environments that value different perspectives and backgrounds. Meanwhile, Proposal 2 has already had a major effect on the University of Michigan, where African-American freshman enrollment declined 15 percent from 2006 to 2010 and law school enrollment fell 28 percent from 2006 to 2011.
At the same time, the Supreme Court is examining University of Texas admissions practices that use race as one of many factors aimed at creating campus diversity. There is also a contradictory ruling from the 9th Circuit that upheld a similar California ban on affirmative action. We haven’t heard the last word on this issue.