The Five Fallacies Of Schuette v. Coalition to Defend Affirmative Action

The Supreme Court decided last week to review
the Sixth Circuit’s decision in
v. Coalition to Defend Affirmative Action
, whose majority opinion (joined
by all 8 Democratic appointees, opposed by all 7 Republican appointees
held that the 14th Amendment bars the people of Michigan from amending their
state constitution to prohibit preferential treatment based on race or
ethnicity by any state agency. The 14th Amendment violation it strives mightily
to find is that barring racial preferences by constitutional amendment imposes
a “structural burden” on minorities: other groups can seek preferential
treatment  through legislation or
lobbying, but minorities cannot.

Schuette is afflicted by five major fallacies,
most of which have not been addressed by discussions
of the Supreme Court’s decision to review it.

The Fallacy Of Fungible Discriminations

The very first sentence of the majority
opinion notes that the effect of Michigan’s prohibition of racial preferences
is that a student has many avenues open to seek legacy preference in admissions,
but “the same cannot be said for a black student” seeking a racial preference.
Thus a
state that allows preferences for tuba players or tight ends cannot bar
preferences for blacks or Hispanics

The majority opinion, in short, recognizes no
difference between discrimination based on race or ethnicity and discrimination
based on legacy status or rural residence or athletic ability. All groups are
entitled to seek what they believe is in their interest, and hence telling
minorities they must surmount higher obstacles than other groups to seek  what they want — racial favoritism — violates
their right to equal protection.

The Fallacy That Affirmative Action “Inures
To the Benefit” Of Minorities: Intent

Schuette found Michigan’s constitutional
amendment barring racial preferences unconstitutional because a state cannot
make a policy that “at bottom inures primarily to the benefit of the minority,
and is designed for that purpose,” more difficult to obtain than policies that
benefit other groups.

judgment disregarded the University of Michigan’s repeated insistence  that its racial preference policies were not
designed to benefit minorities. In its brief
filed in Gratz v. Bollinger, for example, it insisted that “[t]he
University’s interest in providing its students with the concrete educational
benefits generated by a diverse student body bears no resemblance to the
generalized interest in remedying societal discrimination….”

Under affirmative action preferred minorities
are, of course, given preferential treatment because of their race or
ethnicity, but the rationale for the preference is not to benefit the
minorities but the whites and Asians who are exposed to them. “White students
interacting with African Americans, Hispanics and Native Americans sometimes
come with stereotypes about these minorities,” Lee Bollinger, former president
of the University of Michigan, told
the Michigan Daily
(quoted here).
“That kind of breaking down of expectations is the essence of what a liberal
education is all about.” Bollinger did not address the evidence that admitting
less qualified minorities who proceed to cluster at the bottom of their classes
actually reinforces stereotypes of underperforming minorities.

Discerning minorities realize that they are
merely the instruments used to provide “diversity” to others, not its
beneficiaries. Patricia Pacania, in 2005 the University of Michigan’s director
of the Office of Multi-Ethnic Student Affairs, 
the Michigan Daily that looking “to students of color to say ‘educate
me’ is an unfair burden, and I don’t think that’s something we as a University
should ask of its students” (quoted here).
She favored allowing blacks to self-segregate in residence halls rather than
“to just sprinkle” them throughout residence halls so that others could be
exposed to them.

The Fallacy That Affirmative Action “Inures
To the Benefit” Of Minorities: Effect

At this late date, given the mounting
it has become increasingly difficult to argue with a straight face that it
benefits blacks and Hispanics to admit them to selective institutions with
lower grades and tests scores than their peers, resulting in their clustering
at the bottom of their classes, dropping out of STEM fields, failing to
graduate, and failing post-graduate tests of their knowledge such as the bar
exam in disproportionately high numbers. The eight Democrats on the Sixth
Circuit, however, proved they were up to the task.

Despite the argument and evidence that racial
preference policies do not benefit the preferred, the majority strikingly
concluded, “it is enough that minorities may consider [the prohibited policies]
to be ‘legislation that is in their interest.'”

Exactly why one minority group deciding that
it benefits from discrimination against other groups (including other minority
groups) should be “enough” to make the discrimination virtually mandatory is
never made clear.

Preferred minorities, moreover, do not need
affirmative action to receive whatever benefits diversity provides, which they
could receive in full measure by attending less selective institutions.

The Fallacy Of Fungible Minorities

The Schuette majority repeatedly
lumped all minorities together into one amorphous mass — “the minority,” but
Princeton sociologist Thomas Espenshade has found
that “Asian students would fill nearly four out of every five places in the
admitted class not taken by African-American and Hispanic students” if racial
preferences were eliminated. In addition, in their amicus
filed in Fisher Richard Sander and Stuart Taylor found that,
even after Gratz and Grutter, the University of Michigan  continued “systematically preferring blacks
over better-prepared Hispanics,” and they found the same thing at the
University of Texas.

The Fallacy That Discrimination And Freedom
From Discrimination Are Constitutionally Indistinguishable

Perhaps the most radical and disturbing
fallacy of the Democratic judges’ 
decision in Schuette is that the Constitution looks with equal
favor on a group’s interest in being free from discrimination based on race and
its interest in receiving preferential treatment based on race.

It does not. As Judge Julia Gibbons
forcefully argued in her dissent, “these are fundamentally different concepts.”
Quoting the Ninth Circuit’s identical conclusion, she added: “It is one thing
to say that individuals have equal protection rights against political
obstructions to equal treatment; it is quite another to say that individuals
have equal protection rights against political obstructions to preferential

It is a good measure of how far liberalism
today — and the Democratic view of equality informed by it, as reflected so
well in the majority opinion in Schuette — has fallen from its past
commitment to equality that it can no longer distinguish between efforts to
prohibit and efforts to promote racial discrimination.

John S. Rosenberg

John Rosenberg blogs at Discriminations.

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