The 6th Circuit’s Astonishing Defense of Racial Preferences

A divided three-judge panel from the 6^th Circuit has issued a remarkable decision striking down the Michigan Civil Rights Initiative, which prohibited state institutions from “discriminat[ing] against, or grant[ing] 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.” In 2006, Michigan voters had approved the measure, by a 16-point margin. Voters in other blue states, such as California and Washington, have endorsed similar measures.

Judges Guy Cole and Martha Daughtrey (both Clinton appointees) held that the MCRI violated the equal protection clause of the 14^th amendment. They complain that the MCRI forced Michigan’s public universities “to modify the policies they had in place for nearly a half-century to remove consideration of ‘race, sex, color, ethnicity, or national origin’ in admissions decisions. No other admissions criteria–for example, grades, athletic ability, or family alumni connections–suffered the same fate.” (The last time I looked, the 14^th amendment didn’t promise equal access to public university admissions regardless of an applicant’s grades.) The duo further contended that the use of a plebiscite “rigged the game to reproduce” the majority’s “success indefinitely.” According to Judges Cole and Daughtrey, then, a “rigged” version of “success” for the “majority” means creating an admission system in which colleges and universities cannot give special preferences to anyone on basis of the candidate’s race, ethnicity, or gender. A system that allows such preferences, on the other hand, reflects the equal protection tenets of the 14^th amendment.

To reach this Orwellian conclusion, the two judges cited primarily a 1969 fair housing case and a 1982 case, Washington v. Seattle Sch. Dist. No. 1, which involved a state referendum overriding a decision of Seattle’s school board to mandate busing to achieve integration. Quoting from the open housing case, Cole and Daughtrey maintained that a system of racial preferences in college and university admissions, like a city’s open housing policy, “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.”

Yet the entire (public, at least) argument of “diversity” advocates in the academy—and a viewpoint echoed by Justice O’Connor’s decision in Grutter—is that racial preferences do not insure primarily to the benefit of the minority. Instead, the story goes, they benefit all students, regardless of race, by exposing them to the wonders of “diversity.” In short, Cole and Daughtrey have upheld a racial preferences scheme by turning the (shaky) reasoning of Grutteron its head, and found that by prohibiting racial preferences, MCRI “targets a program that ‘inures primarily to the benefit of the minority.’” The judicial duo dismissed the relevance of Grutter’s “diversity” reasoning to this case in a single paragraph buried in the middle of their opinion.

Finally, and in perhaps the most extraordinary aspect of an extraordinary decision, Cole and Daughtrey characterized college and university admissions committees as “political” bodies, in that they “involve governmental decision-making,” and compared them to an elected school board whose policies were at issue in the Seattle busing case. The judges thus dismissed as narrow and “erroneous” the common-sense “definition of ‘political’ as ‘electoral.’” This definition of “political” would apply to such obviously non-political matters as a professors’ grading policies at a public university—and would, in effect, make “political” every policy action, no matter how academic in nature, at a public university. The majority had to make this absurd argument in order to shoehorn their opinion into the facts of the Seattle precedent, which involved the displacement of a local, elected, school board’s decisions with the policies of a new statewide authority.

Judge Julia Smith Gibbons’ dissent illuminated the absurdity of characterizing all aspects of the academy as “political,” given that “the faculty members who are permitted to vote on policy matters are therefore significantly insulated from political pressure by virtue of their tenure. Such faculty are beholden to no constituency—student, local, or otherwise. And . . . the people of Michigan have no ability to exert electoral pressure on the university decision makers to change their admissions policies.” The Supreme Court never intended to “guarantee that racial minorities will win every political battle,” as the majority seems to imply.

More to the point, Gibbons noted, the MCRI, “which prohibits racial classifications, a fortiori does not classify facially on the basis of race.” Indeed, neither the majority nor the dissent grappled with an obvious fact: that not only do all “minority” groups not benefit from racial preferences in the admissions process, but frequently harm at least one minority group (Asian-Americans). In the political and constitutional scheme outlined by the majority opinion, Asian-Americans essentially have no recourse to receive equal treatment under the law.

This isn’t to say that courts should simply rubber-stamp popular votes on all social issues. The use of plebiscites to strip from minority groups a fundamental right (especially one that already had been recognized, as occurred with California’s Proposition 8 and Maine’s Question One a year later) strikes me as dubious, on both moral and constitutional grounds. But only the most extreme advocates of the academic status quo could define as fundamental a right for some (but not all) minority groups to receive preferred status in college admissions.

At the Volokh Conspiracy, Jonathan Adler predicts that the decision will be overturned, either by the 6^th Circuit sitting en banc, or later by the Supreme Court. It’s certainly hard to believe that Anthony Kennedy, who opposed constitutionalizing preferences in Grutter, would uphold this even more extreme ruling.