In 2006, 58 percent of Michigan voters chose to amend their constitution to bar their government from granting preferences to or discriminating against individuals or groups on the basis of race, sex, color, ethnicity, or national origin in employment, education, and contracting. People who oppose race neutrality in government fought the law. Six years later, the United States Court of Appeals for the Sixth Circuit ruled 8 to 7 that Michigan’s voter-approved constitutional amendment was unconstitutional.
According to the court’s incoherent rationale, a law that upholds a colorblind rule of law places a special burden on those who favor a government that discriminates based on race. Of course, it does. Isn’t that the point? There’s a “special burden” against anyone who seeks to hold citizens to different standards based on race. But the court said that the constitutional amendment, “entrenched the ban on all race-conscious admissions policies at the highest level,” and the only recourse for supporters is a long and expensive campaign to amend the constitution. The court called this a “comparative structural burden” that “undermines the equal protection clause’s guarantee that all citizens ought to have equal access to the tools of political change.”
In so many words, the court declared that banning racial discrimination goes against the U.S. Constitution.
Jennifer Gratz, the woman behind Gratz v. Bollinger (the U.S. Supreme Court struck down Michigan undergraduate school’s points-for-race admissions policy), debunked the special-burden rationale. She said that any citizen could initiate a constitutional amendment.
“I was 24 when I started the MCRI,” Gratz said. “I did not have a background in politics. We did not have institutional support. We were outspent by a 5-1 margin. Surely, Judge Cole knows that MCRI’s opponents have the money and manpower to mount their own ballot initiative.”
If Gratz can start a campaign to amend the state constitution in the face of such resistance, how is it a violation of the Equal Protection Clause for minorities to do the same? Why is the standard lower for racial minorities? But I digress.
Yesterday, the U.S. Supreme Court ruled 6-2 to uphold Michigan’s race-neutrality law. In his concurring opinion, Justice Scalia wrote:
“It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the equal protection clause forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. ‘The Constitution proscribes government discrimination on the basis of race and state-provided education is no exception.’ It is precisely this understanding—the correct understanding—of the federal equal protection clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.”
Individuals don’t have to be colorblind, but the law must be. Race-neutrality in government protects all, even if such laws disproportionately impact one racial group. Every American citizen, regardless of race, creed, sex, or socioeconomic status, should fear the government’s power to “favor” one race over another. The group that benefits this time might not be so fortunate next time. Isn’t the better option to ban the government from discriminating altogether?