- - Friday, April 25, 2014


The Supreme Court, in Schuette v. By Any Means Necessary, reaffirmed that the central purpose of the Equal Protection Clause is prohibiting racial discrimination. The Court on April 22 upheld a Michigan state constitutional amendment that prohibited the state from using race and gender-based preferences, including in university admissions.

In upholding Michigan’s amendment, the court dodged a lethal constitutional bullet: Striking down the amendment would have transformed the Equal Protection Clause into an Unequal Preferences Clause.

The constitutionality of affirmative action was not raised in Schuette. The question was not whether government can adopt race-based preferences for minorities, but whether government must adopt them.

The amendment reflected Michiganians’ desire that their state behave in a colorblind fashion. However, colorblindness was evil in the eyes of the Coalition to Defend Affirmative Action By Any Means Necessary (BAMN), which asserted that equal protection required unequal, race-based preferences in favor of minorities.

Schuette was a shameful attempt to constitutionally entrench a “right” to affirmative action. Yet affirmative action itself stands on constitutionally shaky ground. In Grutter v. Bollinger (2003), the Supreme Court, by a narrow 5-4 ruling, upheld the University of Michigan Law School’s use of race-based admission preferences on the grounds that it furthered the compelling government interest of achieving “diversity” in the student body and legal profession.

Even Justice Sandra Day O’Connor, the swing vote jurist who penned the Grutter opinion, opined that “[e]nshrining a permanent justification for racial preference would offend this fundamental equal-protection principle” and that race-based preferences “must have a logical end point.”

Her majority opinion surmised that “[w]e expect that 25 years from now, the use of racial preference will no longer be necessary to further the [diversity] interest approved today … .”

It has been 11 years since Grutter, and by the court’s own clock, the constitutionality of affirmative action has, at most, about 14 years left. The sand in the affirmative-action hourglass cannot pour out quickly enough. As the court observed in Regents of the University of California v. Bakke in 1978, equal protection “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, it is not equal.”

That “equal” means “equal” should be a “duh” moment. Yet Schuette shows just how far the political left will go in the name of promoting racial Balkanization and attempting to weave it into the fabric of our Constitution. One need look no further than the radical position of the Obama administration that anything that has a “disparate impact” on minorities constitutes racial discrimination in violation of civil rights laws.

In pursuit of its ideal of “equal outcomes,” the administration has zealously pursued litigation against banks that don’t make enough loans to minorities, employers who run credit or background checks as part of their hiring or promotion practices, community redevelopment plans for blighted neighborhoods, felony disenfranchisement laws, and even schools that discipline more minority than nonminority students.

The alleged sin reflected in these practices is that they affect more minorities than nonminorities, thus having a racially “disparate impact.”

The political left’s ultimate goal — evidenced by Schuette — is to entrench disparate impact as a constitutional lodestar. Michigan’s colorblind constitutional amendment triggered the left’s opprobrium because it was an overt rejection of the notion that racial minorities are “entitled” to anything. Under the left’s view, any law that impacts minorities more than nonminorities must be presumed unconstitutional, and members of the preferred minority group are entitled to “more” of whatever has been “denied” — university admissions, jobs and promotions.

Stripped of its legalese, disparate impact is nothing more than a Trojan horse for converting equal “protection” into equal “outcomes,” judged on a race-by-race basis. If the left ever succeeds in entrenching disparate impact into the Constitution, practices such as background checks, criminal checks, oral or written competency tests, SATs and ACTs, academic grades or any other practice that impacts racial minorities more than nonminorities would be suspect. Under such an odd view of “equal protection,” the legitimate bases for decision-making would be highly discouraged, and quotas would become necessary to achieve the right racial “balance.”

The stakes in Schuette were thus much higher than many people realize. While the court has, once again, defeated the idea that equal protection mandates equal outcomes, the issue has not gone away. The left will continue to pander to those who believe “equality” can only be achieved in BAMN’s words, “by any means necessary,” including distorting the Equal Protection Clause.

Elizabeth Price Foley is a professor of constitutional law at Florida International University.

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