False equality in Michigan

A state constitutional amendment places improper burdens on racial minorities in public higher education


Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court faces today in the case of Schuette vs. Coalition to Defend Affirmative Action.

The court last considered an affirmative action case from Michigan in 2003, when it upheld the race-conscious admissions policy of the University of Michigan law school. In response to that ruling, opponents of affirmative action put on the ballot an amendment to the state constitution banning any consideration of race or sex in public education.

Voters approved the amendment in 2006. Since then, black undergraduate enrollment at U of M is down 33 percent.

Advocates of affirmative action sued the state on grounds that the amendment violates the U.S. Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.

An applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy. Or she could lobby the university administration or its popularly elected governing board.

But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive, and arduous process.”

Michigan argues that the amendment does not violate equal protection because it treats all races the same. Last year, the 6th Circuit U.S. Court of Appeals rejected that claim: It struck down the amendment because it harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.

By contrast, the 9th Circuit Court of Appeals upheld a nearly identical 1996 amendment to the California Constitution. The conflict in the courts is one reason the justices are reviewing the issue.

This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. In Michigan, the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” the appeals court said.

In some cases, voters were tricked into believing the measure supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”

Even if the initiative process had been pure, the amendment would be intolerable. The Supreme Court has said repeatedly that race-conscious admissions policies may further a compelling government interest in educational diversity.

The court closely analyzes how such policies are designed. But it recognizes that universities have “experience and expertise” in judging the need for a diverse student body.

This is what the court did when it upheld the U of M policy in 2003. The court should uphold the decision striking down the amendment, and send a message to other states that they may not rig the game at the expense of minorities, even if they cloak it in the language of equality.

— New York Times