Last week, in Coalition to Defend Affirmative Action v. Regents of University of Michigan, the U.S. Court of Appeals for the Sixth Circuit struck down an amendment to the Michigan constitution that prohibited the state’s public colleges and universities from granting “preferential treatment [to] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” The amendment was the result of a successful voter initiative, known as Proposal 2. In striking down the amendment, the appeals court held that “Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”
Proposal 2, also misleadingly known as the Michigan Civil Rights Initiative, was passed by 58 percent of Michigan voters in November 2006 and became law in December of that year. Among its notable supporters were Jennifer Gratz, plaintiff in the 2003 case Gratz v. Bollinger (where the U.S. Supreme Court ruled that students could not be given “extra points” in admissions decisions on the basis of race); Barbara Grutter, plaintiff in the Grutter v. Bollinger case of the same year (where the U.S. Supreme Court upheld the use of race as a “factor” in the University of Michigan Law School’s admissions decisions); and Ward Connerly, a former Regent of the University of California who was instrumental in the passage of Proposition 209, California’s own successful anti-affirmative action initiative of 1996.
The essence of the argument put forth by Proposal 2’s proponents was that race-conscious admissions decisions constitute “reverse” discrimination in violation of the Constitution’s Equal Protection Clause. The Supreme Court had ruled on the issue on multiple occasions (including Gratz and Grutter), and earlier this year the Fifth Circuit Court of Appeals upheld (and subsequently refused to grant a rehearing on) the University of Texas Law School’s policy of using race as an admissions factor as constitutionally permissible. The basic holding of those decisions is to permit educational institutions to use race as a “soft” factor in admissions decisions while prohibiting from assigning some fixed value to an application based on the applicant’s race.
Opponents of the initiative cited the remedial purpose of the Fourteenth Amendment and affirmative action policies. Indeed, the goal of race-conscious admissions is to redress the deeply rooted discrimination that African Americans and other people of color have faced in this country. The American Civil Liberties Union (ACLU) and the National Association for the Advancement of Colored People (NAACP) were among those opponents, and the ACLU participated in the argument and briefing in the case that was decided last week.
In reaching its decision, the Sixth Circuit relied on what is known as the “political structure” doctrine, which stems from an understanding of the Equal Protection Clause as prohibiting “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” The court found that Proposal 2 did exactly what the doctrine prohibits: it purported to treat all individuals as equals, but by doing so, it unfairly burdened racial minorities.
The Myth of Diversity
The word “diversity” has become a buzzword, all but devoid of meaning. The notion of a “diverse” candidate or a “diverse” individual background is nonsensical; diversity requires comparison of components within a group. A single person cannot alone be “diverse.” The Grutter Court’s endorsement of diversity as a compelling state interest may at first glance seem progressive, but upon closer look, it is an alarming development. If the purpose of affirmative action programs is to diversify the classroom, and consequently the workplace and the community, then who actually stands to benefit from such diversity? According to Justice O’Connor, writing for the Court in Grutter, white students benefit from exposure to nonwhite students. By that rationale, the interests of white applicants who were denied admission are pitted against the interests not of the African-American students who were admitted allegedly in their stead, but those of the future (white) classmates who benefited (by way of greater diversity) from the admission of African-American students over white students.
Despite the Supreme Court’s language in Grutter and prior cases, diversity should not be the goal of race-conscious admissions. Rather, it should be the coincident result of a successful effort to remedy historical discrimination. African-American students and other students of color do not benefit from diversity per se; rather, they benefit from access to institutions from which they have historically and systematically been excluded.
In holding that race-conscious admissions are necessary to ensure fair access to educational institutions, the Sixth Circuit recognized the myth of diversity and reinvigorated the notion that achievement of true equality requires more than legislative lip service.