Today the Sixth Circuit Court of Appeals struck down a section of Michigan’s constitution that banned affirmative action, claiming it was a violation of the Equal Protection Clause of the Fourteenth Amendment.
If you would be so kind, please read the following, which is Section 26 of Article I of the 1963 Michigan Constitution (i.e., what just got struck down by the Sixth Circuit):
§ 26 Affirmative action programs.
Sec. 26. (1) The University of Michigan, Michigan State University, Wayne State University,
and any other public college or university, community college, or school district shall not
discriminate against, or grant preferential treatment to, any individual or group on the basis
of race, sex, color, ethnicity, or national origin in the operation of public employment, public
education, or public contracting.
(2) The state shall not discriminate against, or grant preferential treatment to, any individual
or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public
employment, public education, or public contracting.
(3) For the purposes of this section “state” includes, but is not necessarily limited to, the
state itself, any city, county, any public college, university, or community college, school district,
or other political subdivision or governmental instrumentality of or within the State of Michigan
not included in subsection 1.
(4) This section does not prohibit action that must be taken to establish or maintain eligibility
for any federal program, if ineligibility would result in a loss of federal funds to the state.
(5) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based
on sex that are reasonably necessary to the normal operation of public employment, public
education, or public contracting.
(6) The remedies available for violations of this section shall be the same, regardless of the
injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for
violations of Michigan anti-discrimination law.
(7) This section shall be self-executing. If any part or parts of this section are found to be in
conflict with the United States Constitution or federal law, the section shall be implemented to
the maximum extent that the United States Constitution and federal law permit. Any provision
held invalid shall be severable from the remaining portions of this section.
(8) This section applies only to action taken after the effective date of this section.
(9) This section does not invalidate any court order or consent decree that is in force as of
the effective date of this section.
History: Add. Init., approved Nov. 7, 2006, Eff. Dec. 23, 2006.
Now, again begging your indulgence, please explain to me how that violates the 14th Amendment (the Equal Protection Clause is in boldface):
[Section] 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
How does neither discriminating against nor granting preferential treatment to a person constitute denial of equal protection to that person? How is it racist or sexist to not consider race or sex when hiring workers, awarding contracts, or admitting students to college?
Set aside the merits of affirmative action for a moment. Whether affirmative action programs are effective or constitutional is not the question– the Supreme Court has ruled that some types of affirmative action are acceptable, and some types are not. With this decision, the Sixth Circuit is strongly suggesting, if not flatly stating, that affirmative action should be mandatory. Maybe that’s an unfair conclusion to draw; I don’t have the text of the decision in front of me– but it’s difficult to avoid that conclusion.
This was a 2-1 decision by a circuit court. Hopefully the Supreme Court will take the appeal and strike down this idiotic decision. Even more hopefully, whatever law schools the two majority judges attended will be stripped of their accreditation.
Here’s the text of the decision. On page 35, the majority claims that “Because Proposal 2 fails the Hunter/Seattle test, it must survive strict scrutiny to stand. See Seattle, 458 U.S. at 485. Under strict scrutiny, the Attorney General must prove that Proposal 2 is ‘necessary to further a compelling state interest.'” If one has to prove that banning affirmative action “futher[s] a compelling state interest,” then the court is in essence claiming that affirmative action is the default position. This means one of two things:
1. According to this court, affirmative action is constitutionally mandatory, and overriding a constitutional mandate requires the strictest scrutiny of the courts.
2. According to this court, affirmative action is the status quo, and changing the status quo requires the strictest scrutiny of the courts.
The first is dubious at best and the second is unpalatable, but judgethink doesn’t necessarily match the actual text of the Constitution.