The two-faced defense of affirmative action

Jennifer Gratz | Lead Plaintiff, Gratz v. Bollinger

Though last week’s Supreme Court ruling in Fisher v. University of Texas was not what many people expected, it provided a firm reminder to universities that race preferences are barely tolerated and must ultimately give way to equal treatment and race-neutral policies.

This fall, the Supreme Court faces an even bigger test of its determination to support equality when it hears Schuette v. Michigan Coalition to Defend Affirmative Action, a case challenging the right of a state (in this case, Michigan) to pass a constitutional ban on race preferences, or affirmative action, in its public institutions.

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In 2006, Michigan voters overwhelmingly passed the Michigan Civil Rights Initiative (MCRI, or Prop 2), which established:

“The state 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.”

Even though the MCRI passed with a margin of 58 to 42, the radical group By Any Means Necessary (BAMN) immediately filed to have it overturned in court.

The group’s arguments, especially when contrasted with those advanced in Fisher and the 2003 case Grutter v. Bollinger, reveal the hypocrisy of affirmative action’s supporters.

In Fisher and Grutter, supporters of affirmative action argued that race preferences must be preserved for the sake of diversity. They insisted these policies are constitutional because providing the benefits of a diverse educational experience to all students, and thus society as a whole, is a compelling state interest. In both cases, the Supreme Court agreed and upheld this limited justification for preferential treatment.

The challenge to the MCRI is a different story.

BAMN insists that the amendment is unconstitutional under the Equal Protection Clause because the legal impact of banning race preferences falls wholly upon, and thus targets, certain powerless minorities. Here, the foundation of their argument is that preferences are in fact maintained not for society as a whole but for the benefit of specific minorities.

Supporters of race preferences now have conflicting arguments. They’ve argued before the Supreme Court that race preferences are primarily for the benefit of everyone. But in the fall they will argue in front of the same court that race preferences are primarily for the benefit of minorities. It would be impossible for the Court to accept that logic without undermining the legal basis for affirmative action.

Proponents of affirmative action want to have it both ways, and it’s clear that they are willing to shoehorn just about any position in order to hold onto the unpopular policies of race-based discrimination. Their two-faced arguments are deceptive, and this deception is at the core of the fight to preserve unequal treatment based on race.

The Supreme Court will rule on this case on the eve of the 50th anniversary of the 1964 Civil Rights Act. I think this is fitting. It is long past time for us to get back to working toward the colorblind ideals of that legislation.

Jennifer Gratz was the lead plaintiff in Gratz v. Bollinger, a landmark U.S. Supreme Court case challenging race preferences in college admissions. After prevailing at the U.S. Supreme Court, Ms. Gratz started and led the Michigan Civil Rights Initiative and later mentored others to bring similar ballot initiatives to their states. In 2007, Ms. Gratz was honored to receive the Reagan Award for Leadership from the American Conservative Union. Gratz is the founder and CEO of the XIV Foundation.

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