Michigan Appeals Court Rules Ban on Affirmative Action Unconstitutional

Given the history of ‘affirmative action’ policies in academia, the Court’s ruling is not a surprise.

Reuters:

A federal appeals court on Friday struck down a Michigan law that banned affirmative action in college admissions, creating the possibility of a U.S. Supreme Court battle.

The 6th U.S. Circuit of Appeals, in a 2-1 decision, found that a 2006 amendment to the Michigan constitution, “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”

The case could go to the U.S. Supreme Court, but given the history of Court decisions, and the recent 2003 ruling in Grutter v. Bollinger, I suspect that the ruling will be upheld.

Below is some research I’ve done on legal rulings pertaining to affirmative action.

After the civil rights movement of the 1960s  court rulings on preferential treatment (affirmative action) have gone back and forth but never has the central issue of equality been truly enforced. Below examples are given which reflect the paradoxical views of universities, and what Thomas Sowell describes as, “a zig-zag pattern of judicial decisions over the years.” [1] Two of the most important Court decisions regarding civil rights and affirmative action policies in schools were the 1978 Regents of the University of California v. Bakke U.S. Supreme Court ruling, and 2003’s Grutter v. Bollinger, in which the Supreme Court took a step backwards and abrogated the ruling of another case, Cheryl J. Hopwood, et al., v. State of Texas, which the U.S. Supreme Court declined to review.

Regents of the University of California v. Bakke

The early 1970s saw the first adverse effects of affirmative action ‘goals’ in major universities, and legislation from Congress put pressure on public and private organizations to ‘promote diversity.’ [2] The medical school of the University of California at Davis became the center of controversy when Allan Bakke, a white male, was rejected from the regular admissions program in 1973 and 1974. Upon investigation it was discovered that the University had a dual admissions program which considered minority applicants apart from non-minorities. The University found to be admitting “Blacks,” “Chicanos,” “American Indians,” and “Asians”[3] some of whose GPA scores were below 2.5, the  cutoff for non-minority admissions. Additionally, no white “economically and/or educationally disadvantaged” candidates were admitted through this program. Minority applicants were admitted with lower grade point averages and Medical College Admissions Test (MCAT) scores than could be considered competitive with non-minority applicants.[4] This caused non-minority students like Bakke to suffer the very same race-based discrimination which affirmative action supporters supposedly abhorred.

The Supreme Court of California determined that the University had failed to demonstrate that Bakke would not have been admitted without the special admissions program, and ordered that Bakke be given admission. The University then appealed the case to the Supreme Court of the United States and in Regents of the University of California v. Bakke the Court ruled that quotas and set-aside programs must not be established in public universities. Bakke’s admission was officially granted. But the Court also stated that “public higher educational institutions may give race a ‘plus factor’ to increase diversity.”[5] This  ‘plus factor’ theory played a major role in the Courts decision in the recent 2003 ruling of Grutter v. Bollinger which prompted the proposed ban on affirmative action in Michigan.

Cheryl J. Hopwood, et al., v. State of Texas

In 1992 the University of Texas Law School denied admission to Cheryl Hopwood, who is white, raising a severely handicapped daughter, and who had worked over 20 hours a week to pay for her tuition. Hopwood had a 3.8 GPA and was ranked at the 83^rd percentile on the LSAT.[6] The University of Texas Law School had denied Hopwood because of their ‘preferential’ admissions program. This is how the school evaluated students:

First, the University would assign a ‘Texas Index’, a composite of the applicant’s LSAT score and GPA. Then, in order to achieve the predetermined ‘goal’ of diversity, the University would have all applications from minorities considered by a ‘minority admissions subcommittee’, these minority applications were not compared to those of non-minority applicants. Despite Hopwood’s Texas Index of 199 (a score achieved by only one of the black students admitted), Hopwood and four other white applicants, each with a Texas Index of 197, were denied admission. The Center for Individual Rights, a civil rights group based in Washington D.C., took up the cause and helped to support a reverse discrimination suit against the school. On August 19, 1994, a U.S. District Judge ruled that: “‘affirmative action programs are still needed in our society,’ and therefore universities may legitimately consider race and ethnicity as one factor in their admission polices. However, a university must not use separate committees to evaluate applications, nor should it use different minimum test scores and GPAs for minority applicants and white applicants.”[7] The Judge stated that despite the evidence of the university’s race-based preferences, the plaintiffs could not prove that race was the deciding factor, and therefore, he held that the plaintiffs could reapply for admission without paying the application fee.

The University justified their position by claiming that Texas still suffers from the effects of past discrimination. However, “over two-thirds of the black admittees were from outside the state.”[8] The case was appealed and the Fifth Circuit Court of Appeals found that ‘diversity’ is not a justification for race-based preferences. Supporters of affirmative action were in an uproar and charged that the Court misread the case law; media coverage ran headlines such as “A Stunning Blow to Affirmative Action.”[9] Apparently, justice and equality have nothing to do with support for ‘affirmative action.’ After all, supporters were willing to resurrect the old “separate but equal” justification, just as long as non-minorities were the perceived victims. The “misread case law” here, could only have been the Supreme Court’s ruling in Bakke: that a public university must not establish quotas or set-asides that give preference to protected minorities. Here the University of Texas was clearly acting unconstitutionally by holding applicants of different races to different standards. The Circuit Courts ruling was, in fact, in support of the true intent of affirmative action, i.e., no preferential treatment based on race! What the media failed to realize is that the goal is equality for everyone. This means ruling in favor of those who have been victims of racial discrimination regardless of minority status. If the Civil Rights Act had been interpreted correctly, no one would dare think that ‘affirmative action’ only applied to minorities.

Grutter v. Bollinger

The U.S. Supreme Court had an opportunity to reinforce the Hopwood ruling in 1996, but they declined, similarly in the case of Grutter v. Bollinger (2003), the Court had an opportunity to prohibit discrimination in the name of ‘diversity’, but chose to fore go the responsibility again. In that case, the University of Michigan Law School denied admission to Barbara Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score. Grutter brought a complaint which accused the Law School of engaging in unlawful discrimination when considering applications of members of a non-preferred race. The District Court found that the Law School’s use of race was unlawful, but this was overturned by an appeal to the Circuit Court which held that there is compelling state interest for the use of race-conscious admission practices in order to achieve diversity. The Supreme Court majority opinion of Grutter v. Bollinger[10] held that: “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” If this is so, it does not make sense to enforce diversity by judging students by race. How can artificial representation achieve effective participation? Justice O’Connor further stated, “the Law School’s race-conscious admissions program does not unduly harm non-minority applicants” (30). But in reality it hurts non-minority and minority members of our society as a whole. For universities are intended to educate Americans so that our country may thrive, if students are not required to be knowledgeable, then they do not have a real education.

O’Connor also acknowledged that race should not be a permanent factor for admissions: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today” (31). She provided even less guidance for how race-preferences should be weened out during those 25 years, “In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity” (30). The Justice seems not to realize that ‘diversity’ will be meaningless if schools do not perform their intended function.

In under fifty years American courts and law-makers deviated so much from the intentions of court cases, like Brown v. Board of Education, and acts, such as the Civil Rights Act of 1964, that as of 2003 the Supreme Court held race-conscious preferences to be constitutional, a ‘plus factor’! Universities across the country embrace affirmative action policies and brag about the ‘diversity’ of the student body and faculty. But diversity has a cost, namely, the academic caliber of students is largely ignored by admissions officials and the value of a college education has diminished.

As it has only been 8 years since O’Connor’s “25 year” expectation, the chances of the U.S. Supreme court upholding the ban on affirmative action policies in Michigan does not seem likely.