In the fall term of 2013, the US Supreme Court will hear arguments in Schuette v. Coalition to Defend Affirmative Action on the question of whether Michigan Proposal 2 [PDF] as applied in college admissions violates the Fourteenth Amendment. Proposal 2, adopted by Michigan's voters in 2006, is a carbon copy of California's Proposition 209 and of four similar state constitutional amendments, all adopted in popular referenda. In identical language, these proposals ban "discrimination" and "preferential treatment" on account of race, national origin and gender. The ban on "discrimination" was included in these proposals to claim political support from the popular sentiment for racial equality that is a lasting achievement of the civil rights movement. But as a legal matter, the bans on discrimination are meaningless because the relevant state constitutions long ago banned "discrimination" on account of the factors listed in these proposals.
The ban on "preferential treatment," however, has a far different purpose and has actual and far-reaching practical effects. That ban was intended to appeal to dark instincts that stretch back at least as far as Reconstruction. It implies and is meant to imply that racial minorities are seeking to achieve gains that they do not deserve and have not earned. It is a lie. In higher education, it is a continuing blood libel on the effort and qualifications of black, Latino and other minority students who have worked exceptionally hard under exceptionally difficult conditions.
The dishonesty of the proposal and its practical effects become clear once the proponents are asked to define what they mean by "preferences." The proposals themselves are silent on that crucial point. In Grutter v. Bollinger and similar cases, however, the proponents defined "preferences" in admissions as departures from the adjusted grade point averages and standardized test scores that state universities now almost universally use as key components in their admissions systems.
Proposal 2 assumes that the grade-test score criteria are universally valid and fair measures of merit and that those criteria should be enforced on minority admissions; however, no one, including the universities or even most of the proponents of these proposals, actually believes that those standards are actually universally fair measures of anything. In practice, the universities have long adjusted their use of grades and test scores when considering the applications of students from poorer and rural backgrounds, of veterans and of numerous other categories of applicants who face some form of inequality. In fact, if the universities did not do that, their student bodies would be even more upper middle class and white than they are today. Moreover, the universities have, for other purposes far less admirable, made clear that they do not regard grades and test scores as immutable criteria because they have repeatedly relaxed them in order to admit the children of alumni and, even more so, the children of donors and powerful politicians.
The universities' practice makes clear that Proposal 2 makes black, Latino and other minority residents into permanent second-class citizens. They, and they alone, cannot use the procedures of the university governing bodies and officials to seek adjustments in the universities' use of those criteria. Quite literally, they cannot fight on equal terms for the adoption of the exact program that the Court said in Grutter was essential if their children were to be admitted in any numbers to the most selective state schools in Michigan.
The en banc US District Court for the Sixth Circuit rightly held that Michigan's Proposal 2 violated the Fourteenth Amendment's guarantee of political equality for racial minorities the guarantee that was the core, original and fundamental purpose of the Fourteenth Amendment itself in Coalition to Defend Affirmative Action v. Regents of the Univ. of Michigan. But the radical nature of Proposal 2 is not exhausted by its open denial of political equality. It also forces the universities to treat racial inequality in a substantively different manner than any form of inequality, and it creates a private right of action to enforce that decree. No one can legally challenge any "preferences," real or imagined, that the universities use to favor any category of applicants other than racial minorities. However, the opponents of minority admissions can brandish the threat of legal action to compel compliance in minority admissions with the grade-test score criteria, or to challenge any policy, including, for example, the fact that admissions officials at UCLA had actually read personal essays from applicants who had the audacity to refer to their Latina/o heritage as a source of strength and inspiration. Just as the Catholic Church once ordered Galileo to pretend that the sun revolved around the earth, these proposals order all university officials to pretend that race and racial inequality do not exist.
Even this, however, does not exhaust the radical nature of these proposals. In Parents Involved v. Seattle Public Schools, the Court held that the fundamental policy of these proposals the so-called theory of the colorblind Constitution is inconsistent with the history, meaning and reach of the Fourteenth Amendment. So, the supporters of these proposals have declared that each state should have the right to define political equality within its own borders. If Louisiana once had the right to determine equality by its own "local traditions and customs," Michigan should now have the right to determine equality in admissions by its own local referendum.
State by state, the proponents of these proposals hope to render Grutter, Fisher v. Texas, and similar decisions irrelevant. Already, twenty-two percent of the nation's population lives in states where those decisions have no meaning. If the Court approves Proposal 2, other states will pass these laws, the numbers subject to them will grow and the Court's decisions on affirmative action will become increasingly irrelevant. This, the proponents say, is "equality." But they do not tell us who decided to adopt it or who bears the sole costs of it. They do not mention that nine out of ten of Michigan's black voters cast ballots against Proposal 2 and that it passed simply and solely because white voters, who are eighty-five percent of the state electorate, voted for it by a two-to-one margin. Nor do they mention that at UCLA, UC Berkeley [PDF] and the University of Michigan, black admissions have fallen by one third to one half, and Latina/o admissions have fallen by similar amounts, once the tremendous increase in the Latino population is taken into account.
As Justice Harlan said in his dissent in Plessy v. Ferguson, Louisiana's laws mandating "separate but equal" facilities on its trains were "cunningly devised" laws to undo the Civil War Amendments under the pretense of supporting them. Now the proponents of these proposals are using Justice Harlan's own words to cunningly disguise laws that achieve the same purpose.
There will be a large rally outside the Court on the day this case is argued. If the Court approves Proposal 2, there will be much more widespread protests as the growing Latina/o population joins the black population in demanding the right to attend universities from which they are increasingly excluded. Our history, from the antebellum South to the segregation era to today, makes clear that recognizing a state's right to proclaim its own peculiar theory of racial equality is a road that leads only to division and disaster. In a nation that is fast becoming majority minority, we cannot afford to take that road again.
George B. Washington is a labor and civil rights attorney from Detroit who is counsel of record in the Supreme Court for the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and to Fight for Equality by Any Means Necessary (BAMN).
Suggested citation: George B. Washington, What is at Stake in Schutte v. Coalition to Defend Affirmative Action, JURIST - Sidebar, Jul. 22, 2013, http://jurist.org/sidebar/2013/07/george-washington-affirmative-action.php.
This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org