A Preposterous Case for Preferences
That Must Be Taken Seriously

The Supreme Court heard oral argument yesterday in an important Michigan affirmative action case, and the transcript reveals what a strange argument it was.

The case is on appeal from the Sixth Circuit, whose eight Democratic-appointed judges had decided, over the bitter dissents of their seven Republican-appointed colleagues, that Michigan voters violated the 14th Amendment’s guarantee of equal protection when they amended their state constitution to ban discrimination against or preferential treatment of any individual based on race or ethnicity. Most of the mainstream press somehow neglected to mention the starkly partisan nature of that decision.

The case is Schuette (pronounced SHOO-tee) v. Coalition to Defend Affirmative Action, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN, ET AL.), Writing on Minding The Campus last spring after the Supreme Court decided to hear the case, I discussed five fallacies of the opinion by the Sixth Circuit’s Democratic majority. All were addressed in Tuesday’s argument.

The Fallacy That Discrimination And Freedom From Discrimination Are Constitutionally Indistinguishable

Several Justices pointed out in sharp, almost incredulous questions that BAMN’s argument that prohibiting preferential treatment violates equal protection would mean virtually all civil rights laws are unconstitutional.

JUSTICE SCALIA: Why doesn’t the Fourth Amendment violate the rule you’re saying — or the 14th Amendment violate the rule that you’re proposing? I mean, I’m a minority and I want laws that favor my minority. Not just in university; everywhere. My goodness, I can’t have that through the normal legislative process. I have to get a constitutional amendment to do it, right?

MR. ROSENBAUM [ACLU lawyer]: That is correct, Your Honor.

JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?

MR. ROSENBAUM: It is an explicitly facial racial classification. It singles out race for different treatment.

JUSTICE SCALIA: In that sense, the 14th Amendment itself is a racial classification, right?

The Fallacy Of Fungible Discriminations

BAMN argues that making it impossible for minorities to seek racial preference is discriminatory because no such ban applies to legacies, cello players, or athletes — in short, that if any preferential treatment is allowed, racial preference should be allowed. But, Michigan Solicitor General John Bursch replied, “it’s the Equal Protection Clause which is making a differentiation between race and everything else.”

Justice Alito was dumfounded.

JUSTICE ALITO: If … one student comes in and says I want to talk about how well I play the cello, all right, we’ll listen to that. I want to come in and talk about why I as a white person should get a preference; you have to listen to that because you’re listening to the talk about the cello, too?

MR. ROSENBAUM: You do, Your Honor.

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

The Sixth Circuit held that Michigan’s ban on preferential treatment was unconstitutional because it “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.”

If that were true it might suggest that the effort to remove preferences was motivated by racial animus. Thus Justice Ginsburg, grasping at non-existent straws, suggested that “the reason for Proposition 2 was to reduce the minority population,” but Mr. Bursch pointed out that in the lower court record of the case “there wasn’t even a question of material disputed fact with respect to intent.”

Indeed, the assertion that the intent and effect of affirmative action was to benefit minorities flies in the face of the ubiquitous insistence that, on the contrary, the purpose of preferential treatment is to promote “diversity” — not as a benefit to the preferentially admitted minorities but to the whites and Asians whose education requires being exposed to them.

One of the oddest arguments that preferential admissions was designed as a benefit to minorities came from Justice Sotomayor, who compared it to busing. “Busing could be viewed,” she stated, “and was viewed to benefit only one group. It was a preference to blacks to get into better schools.” That would surprise all the white students across the country who were bused to promote racial balance. Justice Sotomayor was referring to Seattle, but there too “nearly 40 percent of all the district’s students were being bused for racial reasons.”

Perhaps the strongest evidence for the view that affirmative action does not “inure to the benefit” of minorities is the powerful “mismatch” evidence that it actually harms them.

“To what extent,” the Chief Justice asked BAMN lawyer Shanta Driver,

“does your argument depend upon the assumption that the programs that you say are now more difficult to enact are beneficial to the minority group…? What if the question of whether it’s a benefit to the minority group is more open to debate, whether it’s through the mismatch theory that Taylor and Sander I guess have adopted, or other theories? Do we have to assume in your favor that these definitely are beneficial to particular minority groups?”

Ms. Driver responded: “Certainly the minority voters of Michigan believe them to be, because 90 percent of black voters in Michigan voted against Prop 2.”

This exchange nicely reveals another fallacy of the Sixth Circuit opinion:

The Fallacy Of Fungible Minorities

BAMN implicitly and here even explicitly equates “minority” with black, or occasionally with black and Hispanic, but in fact there are many minorities and they are not fungible. Asians, in fact, suffer more than whites from preferences given to blacks and Hispanics.

BAMN’s argument, in fact, relies on the deeply flawed view that the Fourteenth Amendment protects only minorities, but it cannot accommodate the fact that what benefits one minority group may harm other minority groups. And, as Justice Scalia pointedly added, the Court has rejected the view that only minorities are protected.

JUSTICE SCALIA: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

MS. DRIVER: No case of yours.

It is easy to ridicule the BAMN (and Democratic and New York Times) argument, as George Will did in an incisive recent column beginning with a quote from Humpty Dumpty about words meaning whatever he chooses them to mean. Even the notoriously liberal Ninth Circuit all but laughed it out of court, most recently here, citing two earlier examples. But as I’ve just noted, I have come to regard that as a mistake. The argument against Michigan’s Prop. 2 may be preposterous, but it must be taken seriously because it is a perfect expression of modern liberal race theory, the essence of which is that the “without regard” non-discrimination principle discriminates against minorities.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

3 thoughts on “A Preposterous Case for Preferences
That Must Be Taken Seriously

  1. Very well argued.
    I wish that one of the justices had asked either attorney for BAMN why, if race neutrality is so horrible, they didn’t go through the political process just as the proponents of Prop 2 did — get a measure to change the law on the ballot and try to get it passed? When Prop 2 was on the ballot in 2006, a strongly Democratic year, BAMN’s coalition had almost every important institution in Michigan on its side and outspent the proponents by about 4 to 1. Why go running to the federal courts asking judges to reverse the voice of the people on a far-fetched theory of equal protection when the political process is perfectly available?
    The honest answer would be: Because we know we’d lose again.

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