In a case that sets the 14th Amendment squarely on its head, in Coalition to Defend Affirmative Action, Integration and Immigrant Rights And Fight For Equality By Any Means Necessary (Bamn) et al. v. Regents of the University of Michigan
et al, ___ F. 3d ___ (7/1/2011), the United States Sixth Circuit Court of Appeals holds that a state may not ban discrimination on the basis of race if the ban results in minorities not being able to be the beneficiaries of racial discrimination.
In 2006 the citizens of Michigan voted to prohibit discrimination on the basis of race, including preferences, by a referendum proposition that read,
(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 sub-section 1.
In a 2 to 1 decision, in bafflingly obtuse language, the majority suggested that the proposition "works as a reallocation of political power or reordering of the political process to place 'special burdens' on racial minorities."
How is it possible, logically or practically, that eliminating preferences places special burdens on minorities? The only "burden" is a prohibition upon race-based preferences.
In my view, discrimination on the basis of race is wrong. Period.
In a university admissions policy, for example, there are as fixed number of admissions available. preferring one race necessarily discriminates against another. However the elites may think it benefits society to have racial quotas, from the standpoint of the student refused admission to support another's preference, it is wrong, pure and simple.
In its analysis, the majority said that because the proposition classified on the basis of race, the court had to strictly scrutinize the legislation. The majority had the legal analysis exactly backward. As the dissent pointed out:
“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239 (1976). We apply strict scrutiny to those laws that racially classify individuals, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995), and intermediate scrutiny to those laws that classify individuals based on gender, United States v. Virginia, 518 U.S. 515, 531 (1996). Racial classifications are subject to strict scrutiny if (1) the law classifies on its face or (2) the law has a discriminatory impact and a discriminatory purpose. See Davis, 426 U.S. at 241. The district court concluded that Proposal 2, which prohibits racial classifications, a fortiori does not classify facially on the basis of race. Coal. to Defend Affirmative Action, 539 F. Supp. 2d at 951. Although the district court did find “sufficient evidence to establish a fact question on the disparate impact part of the test,” it did not find a discriminatory purpose. Id. Indeed, it stated that “the demonstration of a discriminatory purpose . . . dooms [the] conventional equal protection argument.” Id. Furthermore, the district court found the equal protection argument based on gender “even less compelling” due to the less exacting level of scrutiny. Id. at 952. I agree with the conclusions of the district court.
Proposal 2 does not establish a facial racial classification because its text does not draw distinctions on the basis of race; in fact, it prohibits them. Additionally, Proposal 2 does not classify racially on an impact theory because it lacks a discriminatory purpose. “[A]bsent a referendum that facially discriminates racially, or one where although facially neutral, the only possible rationale is racially motivated, a district court cannot inquire into the electorate’s motivations in an equal protection clause context.” Arthur v. Toledo, 782 F.2d 565, 574 (6th Cir. 1986). Thus, no heightened level of scrutiny need be applied to Proposal 2, and under rational basis review, Proposal 2 is easily justifiable. Proposal 2 does not violate the Equal Protection Clause under the conventional analysis.
How can a state law prohibiting racial discrimination, but either placing burdens upon or preferring minorities ever be a race based classification? It can't, except in the Orwellian world of the progressives.
I think the Supreme court will likely take this case for review, because it is so high-profile and so important.
Click on the title of the case for a .pdf of the whole thing.