A Horrible Racial Preference Ruling in Michigan

On Friday, a panel from the Sixth U.S. Circuit Court of Appeals struck down Michigan's ban on affirmative action.  In a split decision (Coalition to Defend Affirmative Action vs Regents of the University of Michigan), Judges R. Guy Cole, Jr. and Martha Craig Daughtrey had the presumption to overturn the wishes of a solid majority of Michigan voters who had approved the ban in a 2006 referendum ("Proposal 2").  The idea that two individuals could presume to annul the actions of a democratic majority is troubling.  Far more troubling is the fact that, rather than interpret the law as established by the referendum, a federal court has decided once again to legislate from the bench.

It is important to note that Judge Cole, who wrote the decision, is an African-American appointed by Bill Clinton.  Daughtrey, who was also appointed to the Sixth Court of Appeals by President Clinton, previously served on the liberal Tennessee Supreme Court.  The dissenting vote on the three-judge panel was cast by Judge Julia Smith Gibbons, who was appointed by President George W. Bush.

In striking down the affirmation action ban, Cole wrote that "[t]he majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities."  Whatever does Judge Cole mean by "manipulating the channels of change"?  Or by "places unique burdens on issues of importance to racial minorities"?  Rather than plain dealing based squarely on the Constitution, Cole has resorted to language so abstruse as to be mystifying.

This is not merely legal obfuscation -- it is obfuscation that seems a brazen effort to subvert the Constitution.  What Judge Cole appears to be saying is that no "issue of importance" to minorities can be questioned or even discussed by the majority since any such discussion could be construed as "manipulating the channels of change."  This means that the minority is to enjoy absolute say in everything of importance and that the majority has no right to question any policy that the minority deems an "issue of importance."  If this is the Sixth Court panel's conception of the law, and if this ruling is upheld by the full court, American democracy is in very serious trouble.  As if we did not know that already.

Cole's ruling also asserts that the affirmative action ban "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities."  It is true that Proposal 2 "alters the political structure"; that is to say, it makes a political decision.  That is what legislatures and referenda are supposed to do -- not the courts.  Ironically, the purpose of Proposal 2 was to grant relief to racial groups who themselves had been "impermissibly burdened" by Michigan's affirmative action policies.  How is it that a referendum that restores equal opportunity for all can be seen as "burdening" minorities?

Has Judge Cole considered that affirmative action programs that deny white and Asian applicants admission to college, hiring, and promotion at work might be "impermissibly burdening" to those individuals?  How is it that a federal judge is permitted to place the interests of one racial group (his own, as it turns out) ahead of another?  Nowhere in our Constitution is it stated or implied that one racial group shall be judged superior to another, no matter how poorly their ancestors were treated in the past.  As the Sixth Court of Appeals panel has it, you might as well forget about getting an equal shot at being admitted to the best universities or having an outstanding career in the state of Michigan if you were born with the wrong skin color.  Whites, Asians, and Jews might as well move to Texas.

That is not the way America is supposed to work.  By granting preference to "minorities" as defined by the state, the Sixth Court ruling violates our nation's most cherished values of equal opportunity and fair play.  The Fourteenth Amendment to the Constitution specifies that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the law."  Clearly, the Michigan ban on affirmative action was intended to ensure that governmental entities within the state of Michigan conform to the equal protection clause.  For the Appeals Court panel to strike down such a law on the grounds that it is unconstitutional is absolutely perverse.

In effect, what the Appeals panel has determined is that, because the ban enforces the equal protection doctrine, it is therefore unconstitutional.  That, of course, is exactly the way it works in a totalitarian state in which the law is interpreted in conformity with the prevailing ideological whims of those in power.  It is what communists used to mean, for example, when they argued that free speech was "objectively" criminal.  That is, because it is free and therefore a threat to the totalitarian state, it is unlawful.  The Sixth Court panel apparently believes that equal protection of the law is objectively unconstitutional.  Day is night, and night is day, if Judge Cole says so.

The action by the Sixth Court panel seeks to establish affirmative action as a permanent feature of American society, thereby permanently institutionalizing the bias that now exists in many states against whites in university admissions and government contracting and hiring.  It seeks, in other words, to turn whites into a pariah class who are permanently disadvantaged in relation to privileged minorities.

This, of course, is exactly the way every racist society works.  Often the rationale for racism is that, in the absence of special privileges, a particular racial group would be "unnecessarily burdened."  And what is often meant by this phrase is that a particular racial group would find it difficult to compete with others who seek opportunities for themselves.  Hitler's initial efforts to deny Jews economic opportunities -- long before formulation of the Final Solution at the Wannsee Conference in 1942 -- were based on precisely this rationale.  The German people had been "unnecessarily burdened" by the economic activity of Jews and must be protected by racial laws that excluded Jews from a broad range of opportunities, including university admission.  Once this system of affirmative action was in place -- once the public accepted the premise that a particular racial group must be denied opportunities by virtue of its race and was therefore an "inferior" race -- Germany was on the road to Auschwitz.

The affirmative action ruling by the Sixth Court of Appeals panel seems to reflect the same sort of rationale.  Once Americans accept the idea that opportunities are granted to some and excluded to others on the basis of race, the nation is well on its way to more virulent forms of racism.  If whites can be excluded from university admission and job opportunities on the basis of skin color, they can be denied other basic rights as well.  The Sixth Court ruling seeks to reinstate an unjust system of preferences, and it opens the door to far worse.

Jeffrey Folks is the author of many books and articles on American culture.