- The Washington Times - Monday, October 14, 2013

Affirmative action proponents go to the Supreme Court on Tuesday to argue that a ban on discrimination can itself be discriminatory.

The justices are slated to hear oral arguments in a case out of Michigan, where voters in 2006 approved a constitutional amendment prohibiting racial preferences at public colleges and universities. But a federal appeals court ruled that enshrining that ban in the state constitution violated the federal Constitution’s Equal Protection Clause by elevating the issue beyond the normal legislative process.

Those who support preferences say writing a ban into state constitutions means treating them differently than any other group, such as alumni or students from a specific geographic region.

But opponents say it would be bizarre if a color-blind policy could be struck down because it was discriminatory.

“What’s at stake is probably the future of affirmative action in the United States,” said Ward Connerly one of the authors of the Michigan proposal, which passed with 58 percent of the vote and spawned similar efforts in other states.

“The Congress or the president are not going to make any changes in the status quo, and the only thing that has been effective in eliminating preferences has been the state initiatives,” Mr. Connerly, founder of the American Civil Rights Institute, told The Washington Times. “If those are forbidden by the court, we may as well resign ourselves to a long period of race preferences in the country.”

But political scientists say the 14th Amendment’s guarantee of equal protection is not just about equal outcomes, but also about equal access to the political process. They said as long as racial preferences are permitted under the federal Constitution, creating a state constitutional barrier creates an unfair political burden for minorities.

The amendment in Michigan, known as ballot Proposal 2, was designed to fight back against the governing boards and faculty at state schools such as the University of Michigan, Michigan State and Wayne State.

Those boards have extraordinary power to set admissions standards, free from control by the legislature. Opponents said their only recourse was the state constitution.

But Gary Segura, a politics professor at Stanford University who along with other political scientists filed an amicus curiae brief with the Supreme Court, said banning preferences in the constitution means that minorities would now have to first change the constitution and then lobby the legislature to win special admissions consideration — a hurdle that alumni, or unions, or children from special geographic areas, don’t have to meet.

“In order to change policy, union members, children of Upper Peninsula residents, all need to only engage in one process,” he said. “Racial and ethnic minorities have to do two.”

The case has turned into a test of direct democracy — initiatives and referendums — and whether they work against minorities’ rights.

Mr. Segura said his and other political scientists’ research shows that representative democracy is better at representing minorities, and also allows for the deliberative process and political horse-trading that can help blunt majoritarian excesses.

“The legislative process is historically more sober than the referendum process,” he said.

In an 8-7 decision last year, the 6th U.S. Circuit Court of Appeals struck down Michigan’s amendment and ruled in favor of affirmative-action proponents.

Two Supreme Court precedents have held that the political process cannot be adjusted to make it easier to discriminate against minorities. The question in this case is whether that means anything that is in the interests of racial minorities gets special protections.

Mr. Connerly, who is black, argues his own experience in winning approval of the constitutional amendment shows minorities can win in direct democracy.

He said he was stunned by the appeals court’s logic in striking down his amendment.

“If you abide by the rules of logic, you can’t rationalize this decision,” Mr. Connerly said. “It’s a weird decision. The court was reaching — they were reaching to try to find an excuse to overturn Proposal 2.”

The case is Schuette v. Coalition to Defend Affirmative Action.

Justice Elena Kagan, President Obama’s most recent nominee to the court, has recused herself. She worked on the case as part of the Obama administration when it was proceeding through the lower courts.

The Supreme Court has said racial preferences are constitutional, but must be narrowly constructed.

Earlier this year, the justices handled another affirmative action case, sending it back to the appeals court with instructions to take a more skeptical eye when looking at admissions schemes designed to boost minority enrollment.

The majority opinion in that 7-1 decision was written by Justice Anthony M. Kennedy, who is considered the key swing vote on many of the thorny social-issues questions that come to the court.

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