- - Monday, April 28, 2014


Last October, a skeptical Supreme Court was asked to strike down Michigan’s constitutional ban on race- and gender-preference policies on the basis that requiring equal treatment violates the Equal Protection Clause. After five months of waiting, affirmative action advocates got their answer.

In a 6-2 decision released April 22, the court concluded that the 14th Amendment does not bar voters from requiring fair and equal treatment from their state governments. Citizens, in fact, do have the right to choose equality over preferences and discrimination.

Honest legal analysts have predicted this outcome since the day the lawsuit was filed. Even while upholding limited affirmative action in Grutter v. Bollinger, the court applauded state efforts to enact race-neutral alternatives. Still, there are always surprises. Perhaps the biggest surprise is that this issue went before the Supreme Court at all.

The radical group By Any Means Necessary brought this lawsuit more than seven years ago, shortly after Michigan voters passed the Michigan Civil Rights Initiative by a margin of 58 percent to 42 percent. This initiative made it unconstitutional for the state to “discriminate against, or grant preferential treatment to, any group or individual on the basis of race, sex, color, ethnicity or national origin.”

The entire basis of the lawsuit rested on the claim that it is discriminatory not to have race-based preferences because the effects of removing them primarily target minorities. In other words, universities indefinitely have to treat applicants unequally based on race in order to treat them equally according to their race.

During oral arguments, By Any Means Necessary not only argued that equal treatment violates the Equal Protection Clause, but also went so far as to claim that the protections of the 14th Amendment only extend to Americans of some ethnic backgrounds. BAMN attorney Shanta Driver stood by this claim even after failing to provide a single case to support such a bizarre interpretation.

In the end, no amount of mental gymnastics could square this contorted thinking with honest legal precedent. The court had no choice but to uphold the will of the people.

By ruling to uphold this initiative, the Supreme Court made it clear once again that race preferences are nearing social, legal and political extinction.

Certainly, the court allowed narrow manifestations of these policies to continue in its Grutter and Fisher rulings, but all along it has identified states as the proper laboratories for ending these policies. Eight states have already made this decision, and soon more will follow. Courts are tightening restrictions, and states are extinguishing them. Last week’s ruling is a clear signal that states are moving in the right direction when they do away with policies that treat people differently based on race, gender, ethnicity or skin color.

The time has come for supporters of old-school race quotas and preference policies to recognize reality. They can either accept and adapt to the inevitable move toward colorblind government policies or continue wallowing in the rapidly evaporating pool of identity politics and racially discriminatory policies. Those proponents of the old way who are willing to change can be part of moving our country forward toward true equality — equal treatment under the law for all. It is time for us to come together and put government-sponsored discrimination behind us once and for all.

Groups such as By Any Means Necessary are waging a losing battle to preserve tired policies that the vast majority of Americans have already rejected. They are profoundly disconnected from the pulse of the public. Soon they will be irrelevant to the national conversation in the same way supporters of segregation became irrelevant as their influence faded away.

There are plenty of ideas for improving opportunities for all people, regardless of their ethnicity, that warrant discussion. Socioeconomic consideration and the elimination of legacy boosts for college applicants come to mind. Improving underperforming schools for all our kids must be a priority. We can debate whether school-choice policies or additional funding are the best answers. The debate over whether the benefits of helping challenged students should be narrowly focused on race is over — all students must be considered equally without regard to the color of their skin.

The court has spoken. In state after state, the people have spoken. Let’s move past the racial screeds, divisive rhetoric, and preferential treatment. I ask those who are passionate about social justice to accept reality and be part of the fight for better ways to achieve our common goals. Fifty years after the passage of the 1964 Civil Rights Act, let’s embrace true equality by recognizing that each person deserves to be treated as a unique individual, not a racial token.

The Supreme Court has identified states as the proper arena for change. Elected officials have been loath to lead. The country needs citizens who are ready to stand up for true equality.

Jennifer Gratz, founder and CEO of the XIV Foundation, led the Michigan Civil Rights Initiative.



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