- - Tuesday, October 15, 2013


Only lawyers could invent the legal contortions to call a colorblind admissions policy discriminatory. That’s how a majority of the judges of the 6th Circuit U.S. Court of Appeals, lawyers all, concluded that Michigan voters violated the Constitution when they declared in a popularly enacted state constitutional amendment that students should be admitted to universities based only on legitimate qualifications, and never on the color of their skin. The Supreme Court on Tuesday heard a challenge to the policy. The high court has the opportunity to restore sanity.

The plain-English language of Proposition 2, adopted in 2006, states that public colleges and universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The language is taken from the Civil Rights Act of 1964, which has been law for almost 50 years. “The only thing Article 1, Section 26 of the Michigan Constitution discriminates against,” Attorney General Bill Schuette of Michigan said of the proposition in an op-ed column in this newspaper on Monday, “is discrimination.”

Yet discrimination is exactly what liberals, always looking for an opportunity to feel good about themselves, want. A level playing field for all leaves no room for them to micromanage the admissions process, treating certain applicants as more equal than others. The 6th Circuit sided with those who want to distribute the advantages. The court ruled that barring affirmative action through a ballot proposition and to enact a constitutional amendment is discriminatory because it puts minorities who want to change the law at a disadvantage. Judge R. Guy Cole, a Clinton appointee, ruled that enactment of a constitutional amendment “undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.” Voters “may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”

Judge Cole’s majority decision is nothing short of an assault on democracy itself. Michigan law enables voters to amend their constitution. This is not an unconstitutional burden. It’s called democracy.

The Supreme Court has another opportunity to affirm the principle that race has no role in hiring decisions or college admissions. Justice John Marshall Harlan of Kentucky wrote it plainly in his lonely dissent in Plessy v. Ferguson more than a century ago: “The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.” That’s so plain that even a judge could understand it.

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