Is it discriminatory to prohibit discrimination?

Gail Heriot | Contributor

Want to hear a ridiculous argument? It is a violation of the Constitution’s Equal Protection Clause for a state to prohibit race discrimination. Yes, you read that right. Prohibiting discrimination is discriminatory — or so the U.S. Court of Appeals for the Sixth Circuit has now ruled.

Its decision concerns the 2006 Michigan Civil Rights Initiative, also known as Proposal 2, which was passed overwhelmingly by voters (58%-42%) in response to the Supreme Court’s twin affirmative action decisions three years earlier, Grutter v. Bollinger and Gratz v. Bollinger. Grutter upheld the University of Michigan law school’s affirmative action admissions system, while Gratz struck down the university’s undergraduate admissions affirmative action system. By amending Michigan’s state constitution to prohibit state-sponsored discrimination based on race, sex or ethnicity, Proposal 2 ended the dithering and accomplished what should have been the Supreme Court’s job.

It made it clear that race discrimination would not be tolerated — and that it doesn’t matter a jot which race is victimized.

Lawsuits seeking to have Proposal 2 nullified were immediately filed. But few observers thought these cases stood much chance before the Sixth Circuit. The arguments they advanced had already been rejected by both the Ninth Circuit and the California Supreme Court in litigation over that state’s nearly identical Proposition 209, which passed in 1996. Alas, never underestimate the federal judiciary’s capacity for folly. Last Friday, in a 2-to-1 decision, a Sixth Circuit panel held Proposal 2 unconstitutional.

Here’s the core of the panel majority’s argument: By enshrining a policy against race discrimination in the state constitution, Michigan is discriminating against racial minorities who might wish to lobby the state for preferential treatment. Other interest groups — veterans, public employees, fishermen, etc. — can lobby the state for special treatment without restraint. But a racial group can do so only if it first successfully lobbies to repeal the state constitutional provision. Such a “political restructuring” is not fair, or so Judge Ransey Guy Cole with the concurrence of Judge Martha Craig Daughtrey decided.

There are so many things wrong with that argument that it is hard to know where to begin.

Perhaps most important, the panel majority seems not to have noticed that all laws work a political restructuring, no matter what level at which they are enacted. Take, for example, the Fair Housing Act of 1968. When Congress passed it, it effectively preempted the State of Michigan from requiring preferential treatment for black home buyers. Consequently, unlike other interest groups, black home buyers would have been unable to lobby effectively for preferential treatment until they had repealed the federal legislation.

Similarly, when a state adopts a fair housing law, it effectively preempts cities and counties from requiring preferences. And when a city council adopts such a law, it preempts the local housing office director from granting informal preferences for public housing for members of a favored race. If Proposal 2 is unconstitutional for this reason, then all laws prohibiting discrimination are unconstitutional. But where would that put us? We would be in a world in which the political clout of racial groups at the local level determines who gets what — a racial free-for-all. Isn’t that where we were a century ago? Didn’t we decide it was none too pretty?

The 1982 Supreme Court case upon which the panel majority primarily relies — Washington v. Seattle School District No. 1 — was a convoluted 5-4 decision that did not concern affirmative action. Instead, this seldom-invoked case involved a voter initiative that limited the ability of the school district to use mandatory busing to achieve racial integration. Curiously, the one and only thing that all nine members of the Supreme Court agreed upon in Washington was that any argument like that just adopted by the Sixth Circuit would be wrongheaded. In his dissent, then-Justice Lewis Powell expressed fear that the majority opinion might one day be interpreted to prevent a state from prohibiting unpopular affirmative action plans. The majority scoffed at what they called Powell’s “parade of horribles,” and insisted that he was way off base. In doing so, they admitted that such a result would be both absurd and a misinterpretation of their intent.

One could say that the Sixth Circuit’s decision on Proposal 2 is inexplicable. The problem is that it really isn’t. We all basically get it. If Judge Cole had been a resident of Michigan, he would have voted against Proposal 2 — or at least that is what a fair reading of his opinion suggests. And Judge Daughtrey, too. Fine. Lots of perfectly respectable voters did. But a federal court is not a forum for determining whether a voter initiative is a good or bad idea. At least it is not supposed to be.

The court’s job here was to decide the very limited issue of constitutionality. Otherwise, the last word goes to the voters.

Fortunately for Michigan voters, this too shall very likely pass. There is a good chance that the full Sixth Circuit will be willing to review the panel decision en banc. If not, perhaps the Supreme Court will. The last word has not yet been spoken.

Gail Heriot is a University of San Diego law professor and member of the U.S. Commission on Civil Rights. She co-chaired the Proposition 209 campaign.

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