A federal appeals court panel has ruled that Michigan's ban on affirmative action in higher education is unconstitutional. The court's heart is in the right place, but its legal analysis may seem too inventive to the full appeals court or the U.S. Supreme Court.
In a case involving Michigan's public universities, the three-judge panel of the 6th U.S. Circuit Court of Appeals struck down the ban, included in a state constitutional amendment, as a violation of the U.S. Constitution's equal-protection clause. The court said the amendment "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities."
This holding is spun off two U.S. Supreme Court decisions. One, handed down in 1969, invalidated an Akron city charter amendment requiring that fair- housing legislation be approved by a referendum. The other, from 1982, involved a Washington state referendum outlawing mandatory school busing for the purpose of racial integration. The common denominator in the court's view was that the political process was restructured to the disadvantage of minorities.
Akron's City Council and the school board in Seattle were prevented from taking action beneficial to minorities. The alteration of the political structure was obvious. That's less clear with the education language in the Michigan initiative, which changed a university admissions process, not what dissenting Judge Julia Smith Gibbons called "the processes through which the people exercise their right to govern themselves." A higher court is likely to be skeptical of the conclusion that Michigan's amendment altered the structure of government.
The argument embraced by the 6th Circuit is one approach to having laws such as Michigan's struck down. The other is to challenge them on the grounds that they discriminate.
This too is a doubtful legal strategy, because the Michigan measure professes to forbid discrimination. That doesn't mean such measures are enlightened or attuned to the importance of diversity in higher education. It does mean that they are constitutional.
So, according to the Supreme Court, is affirmative action, though the court has placed limits on it. As retired Justice Sandra Day O'Connor put it in a 2003 case: "The court endorses [the] view that student body diversity is a compelling state interest that can justify using race in university admissions."
We agree. But one can support a practice without considering it constitutionally required, just as one can oppose a ballot measure without believing it's unconstitutional. The surest way to nullify anti-affirmative action measures is to fight them at their source: the ballot box.
-- Los Angeles Times