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Published: Wednesday, 11/21/2012

Affirmative ruling

Whether Michigan’s ban on affirmative action in college admissions is constitutional ultimately will be decided by the U.S. Supreme Court, but a divided 6th Circuit Court of Appeals ruled properly last week that the ban violates the equal protection clause of the 14th Amendment. The high court should uphold the decision.

Michigan’s 2006 enactment of a state constitutional amendment — Proposal 2 — that bars race or gender preferences in public hiring, contracting, and college admissions was an unwise, overreaching reaction to the U.S. Supreme Court’s ruling in 2003 that allowed the University of Michigan Law School to use race as one factor in admissions. At the same time, the high court rejected a more rigid point system for boosting minority undergraduate applicants.

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Some critics of the 6th Circuit decision have cited the authority of Michigan voters to adopt a policy that bans a constitutional remedy for past racial discrimination. Such a view reflects a fundamental misunderstanding of the legitimate prerogatives of each branch of government.

It is the court’s role, and that of the Constitution, to protect minorities of all kinds against the tyranny of the majority. For example, most Michigan voters may not — and probably would not — approve providing adequate health care for prisoners, even though court decisions over the past two decades clearly have determined that not doing so would violate the 8th Amendment of the U.S. Constitution.

The 8-7 decision by the 6th Circuit Court of Appeals properly recognizes that the use of race, under limited circumstances, is a legitimate remedy, consistent with the Constitution’s equal protection clause. Thus, banning such a remedy, particularly by amending a state constitution, places an extraordinary burden on those who seek to protect affirmative action.

The equal-protection requirements of the Constitution continue to evolve, as they have since the days of slavery. As long as an expiration date for the limited application of racial preferences has not passed, such narrowly applied preferences have as much constitutional validity as any other process safeguarding equal protection.

The appellate decision is limited to states in the 6th Circuit, which also covers Ohio, Kentucky, and Tennessee. Michigan Attorney General Bill Schuette, a supporter of the ban, said he will ask the Supreme Court to take the case.

This ruling should not stop universities from using other, less contentious, ways to remedy historical injustices, including considering an applicant’s economic background. But the limited use of race in college admissions continues to be a constitutional and prudent way to ensure a more just society — whether or not the majority of Michigan voters agree.



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